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CORNELL UNIVERSITY LIBRARY 
 
 1924 084 259 930 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084259930 
 
HISTORY AND EFFECTS 
 
 THE LAWS OF MOETMAIN. 
 
AN ESSAY 
 
 ON THE 
 
 HISTORY AND EFFECTS 
 
 OF THE 
 
 LAWS OF MORTMAIN, 
 
 AND THE LAWS AGAINST 
 
 Eestametttara liispostttons for ^ious purposes; 
 
 COMPRISING AN ACCOUNT OP THE 
 
 DEBATES IN PARLIAMENT, 
 
 AND OP THE INQUIRIES OP 
 
 SELECT COMMITTEES OF THE HOUSE OF COMMONS, 
 
 AND THE MOST INTERESTING 
 
 CASES WHICH HAVE OCCURRED IN COURTS OF LAW. 
 
 AN APPENDIX, 
 
 CONTAINING THE 
 
 REPORTS OF THE SELECT COMMITTEES, 
 
 AND 
 
 SBigcsts of % !Eijtl(ence, rtc. etc. 
 
 W. F. FINLASON, ESQ., 
 
 OF THE MIDDLE TEMPLE, BARKISTER-AT-LAW ; 
 AUTHOR OF "essay. ON THE HISTORY AND PRINCIPLES OP PLEADING"; "THE CATHOLIC 
 
 hierarchy"; " charitable trusts". 
 
 LONDON : 
 C. DOLMAN, 61, NEW BOND STREET. 
 
 AND 22, PATERNOSTER ROW. 
 
 M.BCCC.LIII. 
 
(&^3^^> 
 
 LONDON ; 
 T. RICHARDS, 37 GREAT QUEEN STKEKT. 
 
THE RIGHT HONOURABLE 
 
 THE EARL OF ARUNDEL AND SURREY. 
 
 Mt Lord, — 
 
 The proceedings of tlie Mortmain Committee 
 of the House of Commons in 1851 (of which your Lordship 
 was a member) induced me to investigate that branch of legis- 
 lation ; and I was engaged, with others, in the preparation of a 
 report and resolutions submitted to that Committee, and a 
 portion of which are embodied in their report. 
 
 These circumstances led me to undertake the work which 
 I now have the honour of presenting to your Lordship. And 
 in availing myself of the permission, so kindly and readily 
 granted,- to place your Lordship's name in the first page of 
 this Essay, I cannot deny myself the pleasure of expressing 
 my thanks for a favour, and a high distinction, which must 
 accredit my book, not only to the Catholic world (who are 
 
deeply interested in a subject affecting the property of their 
 Church and its charities), but to the public at large, who 
 are sensible of the active interest which your Lordship 
 has always taken in whatever was calculated to advance the 
 true interests of the country, and the cause of charity and 
 benevolence. 
 
 I have the honour to remain. 
 My Lord, 
 "With sentiments of sincere respect and regard. 
 
 Your Lordship's most obliged and humble servant, 
 
 W. F. FiNLASON. 
 
 Temple, April 1853. 
 
CONTENTS. 
 
 ESSAY : — 
 
 IHE ANCIENT LAWS OP MOBTMAIN 
 
 LEGISLATION AT THE ERA OF THE REEOBMATION 
 
 LEGISLATION AMEK THE KETOLUTION 
 
 MODERN LAW AGAINST DISPOSITIONS FOB PIOUS PtTBPORES 
 
 RESULTS OF THE LAW 
 
 DEBATES IN PARLIAMENT 
 
 COMMITTEE OP 1844 . 
 
 REMARKABLE CASES 
 
 COMMITTEE OP 1850 . 
 
 GENERAL OBSERVATIONS 
 
 . 
 
 1-32 
 
 
 32-53 
 
 
 53-77 
 
 8P0RES 
 
 77-84 
 
 
 84-104 
 
 
 104-120 
 
 
 110-118 
 
 
 98-136 
 
 
 136-164 
 
 
 164-166 
 
 APPENDIX : 
 
 PABT I. EVIDENCE AND BEPORT OP COMMITTEE 1844 . 170-204 
 
 PART II. EVIDENCE AND BEPORT OP COMMITTEE 1850 . 205-245 
 
 PABT III. RECENT CASES ..... 245-266 
 
PREFACE 
 
 Within less than ten years there have been two com- 
 mittees on the laws of mortpaain, as they are loosely 
 called, or rather, (since the old laws of mortmain properly 
 so called, are now nearly obsolete), the laws affecting 
 alienation of land for pious purposes. That the subject 
 is of deep interest this fact alone would indicate; and it is 
 so equally to Catholics and to Protestants. 
 
 The modern law of mortmain, as it is popularly but 
 improperly called, is a law against dispositions testament- 
 ary, or to take effect at death, for charitable purposes, 
 and was passed, and is maintained, principally by reason 
 of those prejudices which are to be attributed to the 
 anti-Catholic traditions respecting the supposed " ra- 
 pacity" of the Catholic clergy, and their tendency to 
 enrich the Church by bequests procured from dying 
 persons. But these prejudices, originally evoked against 
 Catholic -charity, have long since been directed against 
 charity in general; and thus, by a curious retribution, 
 the traditions which can be traced to a hatred of Ca- 
 tholicism have resulted in a law which now weighs 
 most heavUy on Protestantism. So false are these 
 traditions, and so unfounded these prejudices, that the 
 system of death-bed charity, supposed to have arisen 
 in the " rapacity" of the Popish clergy, was unknown in 
 this country until after the Reformation. Before that 
 era, charity took the form chiefly of grants by the 
 living; and almost all our old Catholic foundations 
 were made by gift, not by last will. Indeed, until 
 
PREFACE. 
 
 the spoliations of the Reformation had commenced, de- 
 vises of land for any purpose were not strictly alloAved 
 by law ; and in the age when the greater portion of the 
 religious houses were founded, were either not allowed 
 or not practised. It was not until«,fter the Reformation 
 that death-bed charity was encouraged by acts of parlia- 
 ment passed expressly for the purpose of facilitating de- 
 mises of land by last will to pious uses ; and, for the first 
 century or so of Protestantism, charity took chiefly, if not 
 exclusively, that form. At the Revolution, when Ca- 
 tholics were not allowed to hold land at all, a feeling 
 arose against this species of charity, unquestionably often 
 spurious, and the result of the reaction was the Act of 
 George II, commonly called the modern law of mort- 
 main, but having really no relation to mortmain, and 
 more properly called an act restraining dispositions of 
 land, by way of devise or to take effect at death, for 
 charitable purposes. The old mortmain law afiected 
 only the perpetuity of the persons or bodies politic holding 
 the land ; and not at all the purpose for which it was 
 held, whether charitable or not ; whereas the modern 
 law points peculiarly to the purpose, applying only to 
 land alienated for charitable purposes, whether to per- 
 sons or bodies corporate or not. In short, it is a law 
 exclusively against charity, and was the first law of that 
 character ever passed in this country. ' 
 
 Hence the history of the subject presents two great 
 facts ; that death-bed charity is Protestant in its cha- 
 racter, and that a law against charity is Protestant in its 
 origin. That is to say, on the one hand history shows 
 that the result of Protestantism was, that charity took 
 chiefly, if not exclusively, the form of death-bed dispo- 
 sitions, and that" it then legislated to prohibit the only 
 form of charity which it had left in the land. Thus, the 
 question has great moral and religious as well as social 
 and legal bearings. 
 
 Another striking fact, running counter to popular pre- 
 judices and popular impressions upon the question, is, 
 that in Catholic times in this country charitable and re- 
 ligious bequests were placed on the same footing as all 
 
PREFACE. m 
 
 other bequests, and that in Catholic England of old, as 
 in Catholic Europe at this day, a man was not permitted 
 to leave his land, for any purpose, religious or not, Avith- 
 out making reasonable and proper provision for his near 
 relatives; whereas, in Protestant England, the law is 
 just the reverse ; it places charitable and religious be- 
 quests in a worse position than any other, while, at the 
 same time it makes no provision for wife and family ; 
 allowing a man to leave all his land to a prostitute, but 
 not permitting him to leave an acre to a hospital. 
 
 Another fact equally opposed to prevalent Protestant 
 prejudices, substantiated by the history of this subject, is 
 that undue influence upon testators to the prejudice of 
 the reasonable claims of relatives (i. e. of near and needy 
 relations), is unknown in a Catholic community; for 
 that wherever, as in this country, law makes no provi- 
 sion for their protection, moral theology prescribes it as 
 a religious duty binding under pain of grievous sin : so 
 that in no case has any Catholic been convicted of a 
 neglect of this duty, whereas it has prevailed extensively 
 since the Reformation — especially since the Revolution, 
 in this country among Protestants : and by reason of its 
 so prevaiHng, the modern law against testamentary dis- 
 positions for pious purposes was passed. And still more r 
 despite the vulgar prejudices of which many not vulgar 
 partake, as to the disposition of priests to use their in- 
 fluence for the purpose of procuring property from testa- 
 tors, it appears, on the contrary, that in no case has any 
 priest used his influence for such a purpose ; and where- 
 ever priestly influence is used, it is in favour of charity ; 
 although, by reason of the law against bequests for Ca- 
 thohc sacred purposes, legacies are often, legally and 
 apparently, personal, and for the priest's- own benefit, 
 when morally they are for such spiritual purposes ; and 
 to which they are faithfully and honourably applied.* 
 
 And, on the other hand, all the cases in which undue 
 influence has been proved to have been exercised are 
 Protestant cases ; and instances in which the influence 
 
 * See evidence of Mr. Gibson and Mr. Field, 1844. 
 
 b2 
 
IV PREFACE. 
 
 has been used not for charity but for self; while, on 
 the contrary, all the cases in which undue influence has 
 been alleged against Catholic priests, are cases in which 
 the object has been not self, but charity. 
 
 Of course a subject so fertile in facts so interesting 
 and instructive, has ne common claims upon the atten- 
 tion of all who love truth and justice ; and it is sub- 
 mitted that it eminently illustrates the fallacies of 
 popular impressions and prevalent prejudices.* 
 
 The learned Protestant lawyer, the late Mr. Burge, 
 said in his evidence on this subject : — " It has been re- 
 presented, I think erroneously, that the statutes of Mort- 
 main were passed for the purpose of protecting the people 
 of England against the rapacity of the clergy, and against 
 their ignorance and superstition. I have not met with 
 any statements in old books, which would lead me to 
 suppose that this was the popular opinion. I should 
 say rather that most probably writers and historians were 
 misled. I refer particularly to those who have spoken 
 of ' the gross ignorance ' of the clergy. For instance, we 
 find in Kobertson, from whence Mr. Hallam borrowed 
 his statement as a representation of the state of the 
 clergy at that time and of their gross ignorance, that at 
 a visitation the question put to them was whether they 
 could read. Now the question was not whether they 
 could read, but read well; (the word ^ bene' is sup- 
 pressed), and the reading referred to was not simple read- 
 ing but chanting." Here is a specimen of the manner 
 in which and the means by which Protestant prejudices 
 have been created and cherished on this subject by 
 slanders, as Junius said, " invented by knaves and made 
 current by fools"; started by dishonest writers and copied 
 with servile fidelity by writers superficial and shallow. J 
 
 * " He founded a monastery, for he was most pious", says a chro- 
 nicle. So then, will Robertsons and their followers say, this was the 
 grand proof of their piety ! Attend a little, you hasty judge, " for he 
 was most pious, a lover of the poor, and of all that appertained to 
 God." {Mores Catholici, b. i, c. 6.) 
 
 ■(■ Evidence of Mr. Burge, Report of 1844. 
 
 j See the Essay, further on, where a most malignant misrepresenta- 
 tion is traced down from the time of Hardwicke to the last edition of 
 Blackstone. 
 
PREFACE. 
 
 One main motive of the present writer is, to expose the 
 misrepresentations thus incorporated in public opinion 
 by successive legal authorities from Lord Hardwicke 
 (the author of the modern law) to the present day. And 
 the writer might venture, as expressing his own purpose 
 and intention, to cite the language, so eloquent and so 
 just of Sir F. Palgrave : — " I wish my evidence to be 
 taken as the means of leading others to consider the 
 question impartially, and especially to examine the pro- 
 priety of submitting any longer to the thraldom of the 
 traditionary opinions of the last century. We are now 
 wholly governed by the traditions of Blackstone, and 
 Delolme, and Robertson, and other writers of that de- 
 scription (or Adam Smith), whose opinions are taken 
 entirely as law, without the slightest investigation as to 
 their relevancy or truth. All these writers have con- 
 tributed to fetter public opinion upon the subject of 
 mortmain, and to prevent that freedom of thinking 
 which results from the investigation of facts. The main 
 cause of the popular prejudice is the habit of taking tra- 
 ditionary opinions upon trust. People will rarely take the 
 trouble of examining the grounds of the opinions they 
 have formed. If they would do so, they would find that 
 this feeling would disappear, except among those who are 
 adverse to every species of perpetual endowment or to 
 every permanent donation in favour of objects of religion 
 or charity. As to those who consider that all charitable 
 foundations are detrimental, their opinions will continue 
 as they are. But all persons, of whatever religious class 
 or political opinion, who are favourable to the principle 
 of permanent endowments for religious or charitable 
 purposes, will see, if they simply examine the case upon 
 its true grounds, that they uphold the proscription of 
 such endowments, without that impartial investigation 
 which they would give to any other question of policy." 
 With respect to the modern law itself, the late Mr. 
 Jarman, then the most eminent of living conveyancers, 
 many years ago published his opinion, " that the law 
 produces much litigation and many attempts at evasion, 
 as is always the case where the feelings of mankind 
 are not in unison with the statute-book." 
 
yi PREFACE. 
 
 Against this law, therefore, the writer fighta under 
 the shadow of the great modern Protestant names of 
 Jarman, Palgrave, and Burge ; and he may add, under 
 the great ancient Protestant names of Bacon and Coke ; 
 for, as Sir'F. Palgrave justly says, "the feelings and 
 language of Lord Coke form a singular contrast with the 
 opinions of Lord Hardwicke, a great judge, hut one 
 whose narroiQ nay higoted views have caused much mis- 
 chief to charitable uses"; and all the evidence shews 
 that at the age of the Revolution there was a grievous 
 change in the policy of the law as respects charity, com- 
 pared with that which prevailed at the Reformation; 
 and that CoAvper and Hardwicke reversed the policy of 
 Bacon and Coke.* 
 
 The " narrow nay bigoted views" of Lord Hardwicke, 
 however, unhappily prevail at this day in the profession, 
 in the public, and in parliament ; Lord Hardwicke was 
 a great hater of Popery, and put in force most eagerly 
 the persecuting laws preventing Catholics from holding 
 lands. In his time, the most eager haters of Catho- 
 licity were the enemies of charity, and so in our own 
 days ; those who maintain the modern law, declaim 
 against the rapacity of the priests and denounce the arts 
 of the clergy. This is the language of Paine ; and the 
 
 * What the modern law actually is, may be judged from one of the 
 first cases occurring under it. 
 
 "In 1719 Eoger Troutbeck left England a poor mariner, and never 
 returned, dying ui 1785. He made his will, not being aware that the 
 statute of George II had passed, and his will contained this recital : — 
 ' As I have no relation or kindred alive (to my knowledge or belief), 
 having outlived them all, and whereas it is natural for all men to have 
 regard for their native place, where the seeds of their education were 
 planted, I therefore bequeath, etc' (giving the whole of his property 
 on certain trusts, the general object being to complete and increase 
 the charity school in Wapping, where he had been educated as an 
 orphan.) 
 
 Although, however, he had no heirs or next of kin that he knew of, 
 and though none appeared when the advertisements were put in the 
 papers, by the order of the Court of Chancery the property was con- 
 fiscated under the act of George II, and went to the Crown. The 
 proceeds were spent on the Royal Pavilion at Brighton, and the poor 
 of "Wapping were deprived of the intended bounty of the testator. 
 See evidence of Mr. Anstey, First Report, Committee 1851, p. 502. 
 
PREFACE. VU 
 
 law was passed in an age of scepticism ; in an age when 
 Bishop Butler declares^it was deemed a mark of imbe- 
 cility to avow belief in Eevelation ; and when contem- 
 porary history shows universal corruption, debauchery, 
 and depravity. It was in such an age, that the coarsest 
 prejudices against Catholicity prevailed, and were made 
 the means of passing the first law against charity. 
 
 The present publication is directed, not merely so 
 much against the law itself, as against the feelings and 
 prejudices in which it originated : and, as it was a law 
 against charity, passed from prejudices against Catho- 
 licity, so this little work pleads at once in favour of 
 charity, and seeks to dissipate some popular prejudices 
 against the religion which, by common consent, is em- 
 phatically the religion of charity — the religion which 
 founded our cathedrals, our churches, our colleges, 
 and the old religious houses, with all their magnificent 
 hospitality, and their munificent works of mercy. 
 
 Nor is it only against prejudices prevailing in the 
 public mind that these pages are directed ; it is also 
 designed to expose some instances in which, both in 
 courts of law and committees of the House of Commons, 
 these prejudices have been permitted to produce flagrant 
 injustice. It is well that such cases should be recorded 
 — not for purposes of reproach as to the past, but of 
 warning for the future. There have been days — :dark 
 days in our history, when courts of law were scenes of 
 oppression, and committees of the House of Commons 
 perpetrators of persecution. These pages are com- 
 mended to all who do not desire to see those days re- 
 vived; to all lovers of charity, of justice, and of truth. 
 
 It is a curious fact, that to the religious houses of the 
 Catholic Church, to which originally the ancient laws 
 of mortmain applied, those laws now no longer apply ; 
 because, being under anti-Catholic laws illegal, they 
 are not recognized as corporations, i. e, bodies having 
 perpetual succession; and the consequence is, the vir- 
 tual confiscation of any bequests to them as such bodies.* 
 
 * See case of Carherry v. Cox, Appendix. 
 
Till PEEFACE. 
 
 On the other hand, the law of George II applies to 
 bequests to any persons, corperate or incorporate, in 
 trust for any religious or charitable purposes, Catholic 
 or Protestant. 
 
 Another result is, that while the Protestants deplore 
 the awful need that exists for spiritual instruction and 
 charitable ministrations, and the enormously increasing 
 mass of misery and depravity, all efforts to meet the 
 exigency are repressed by law, and the exertions of the 
 Catholic Church, which alone, by her religious orders, 
 could effectually grapple with it, are especially ex- 
 posed to legal proscription, and her property liable to 
 legal confiscation. Surely it is time that a policy so 
 suicidal should be reversed, and such is the scope, the 
 object, and the aim of the present work— a plea for piety 
 and charity. 
 
 Temple, 1852. 
 
HISTORY 
 
 OF 
 
 THE LAWS OF MOETMAIN. 
 
 The Church had virtually acquired, property long before the 
 time of Constantino, for the emperor ordained that all things 
 which had been unjustly taken from the Church, whether houses 
 or lands, should be restored to her ; and, at the same time, made 
 it lawful for all persons to leave property to her hf will.* Pro- 
 perty given to the Church was, in reality, given for the erection 
 and reparation of churches, the necessary maintenance of the 
 clergy, and the relief of the poor. At the very origin and rise 
 of Christianity, it was a ''counsel of perfection" that those who 
 had property should share it with those who had none :t and so 
 soon as peace succeeded persecution, J Christians formed commu- 
 
 * Thomasdnus de vet. et nov. Bis. Eccl. pars iii, lib. i, cited by Digby. 
 
 t In the Acts of the Apostles we read that those who had lands, etc., shared 
 the proceeds with their fellow-Christians. 
 
 % A religious order is a society of Christians living together under certain 
 rules, for the purpose of practising the Gospel precepts. Whatever may be 
 the form of their institutions, they have for their object more than the 
 mere observance of the precepts : the idea of perfection is always included. 
 Having heard from the lips of their Divine Master the words "If you 
 would be perfect, sell all you have and give to the poor", they have embraced 
 the precept with courage. In the cradle of Christianity we find the 
 faithful, under the direction of the apostles, united, and had all their pro- 
 perty in common. According to Cassian, this kind of life was never wholly 
 interrupted : there were always some fervent Christians who continued it ; 
 thus attaching, by a continued chain, the existence of the monks to the 
 primitive associations of apostolic times. And from the time that peace was 
 given to the Church, ahe was never without religious communites. — Balmez, 
 Protestantism compared with Catholicism, c, 31. 
 
10 niSTORY OF THE LAWS OF MORTMAIN. 
 
 nities for this purpose, who were called emphatically "religious," 
 because appearing to be so in perfection. In favour of such 
 religious communities the pagan laws, prohibiting the bequests 
 ofproperty to communities or corporate bodies, were formally 
 abrogated by ConstantinCi and important privileges were con- 
 ferred upon them by Charlemagne.* And, as the pagans had 
 spent their surplus wealth iu erecting baths, colosseums, pyra- 
 mids, and arches; Christianity raised monasteries, hospitals, 
 colleges, and cathedrals. The.se religious foundations were the 
 first institutions of charity ; and what was given to the Church, 
 especially to these orders, was invariably given to the ■ poor.f 
 But the material advantages they imparted to a country f were 
 
 * See Dollinger's Church History, part ii, c. 10. 
 
 + It was one and the same thing to give to the poor and to give to the 
 Church ; for all the substance of the Church was the patrimony of the poor, 
 and the money intended for the poor was therefore committed to the Church : 
 and this will partly explain why Constantine decreed that the clergy should 
 be exempt from paying taxes. In the primitive times, the bishop was the 
 sole dispenser of the goods of the Church by the hands of the deacons. Thus 
 we read in the Apostolical Constitutions, which are of great antiquity : " It 
 is for you laymen to contribute liberally ; it is for the bishop or the admini- 
 strator of ecclesiastical matters to dispense. Beware, however, lest you wish 
 to call the bishop to account, for he has God to calLhim to account." But 
 the bisl^op was bound to follow the canonical law of dispensation ; and if he 
 swerved from it was amenable to the metropolitan. 
 
 This law divided the goods of the Church into four parts; one for the 
 poor, one for the clergy, one for the bishop, to enable him to exercise hos- 
 pitality, and one for the repair of churches. Under Charlemagne, two parts 
 out of every three of all the alms conferred upon the clergy and the monks 
 should be given to the poor. The charge of Pope St. Gregory to St. Augus- 
 tine, the apostle of England, respecting the distribution of ecclesiastical 
 goods was, " that they should be dispensed to the poor, and for the purpose 
 of educating youth in schools to the glory of God, and the utility of man". 
 In 1134, a general chapter of the Cistercian order decreed that the goods of 
 the Church were to be expended upon the poor. The Council of Trent 
 recognized and renewed all the old canons to the same effect. And the last 
 archbishop whom England possessed after the Reformation, Cardinal Pole 
 legate of the Apostolic See, reminded the clergy in 1566 of the charge of 
 Pope Gregory to St. Augustine; and declared that the ministers of holy 
 Church ought to be ever the fathers of the poor. — Mores Catholici, b. i, c. iii. 
 
 X Perhaps it will be said, that the immense properties acquired by the 
 monasteries, were an abundant recompense for their labours, and therefore a 
 
HISTORir OF THE LAWS OF MORTMAIN. 11 
 
 not considered so great a blessing and benefit, as the piety in 
 which works of charity arose,* and at the same time the pious 
 nses to which the property of the Church was devoted, were not 
 deemed so important as the motive which dictated them ; and 
 the Church carefully taught, that no duty could be lawfully disre- 
 garded on the specious pretext of enriching her. The author 
 of Mores Catholici tells us, " In 813, a council of bishops 
 under Charlemagne, grievously inveighed against those who 
 tempted the faithful to endow the Church, and ordered such 
 gifts to be restored to the heirs or next of kin, ' beyond what 
 
 proof that they were not disinterested. No doubt, if we look at things in 
 the light in which certain writers have represented them, the wealth of the 
 monks wUl appear as the fruit of unbounded cupidity. But we have the 
 whole of history to refute the calumnies of the enemies of religion. Besides 
 the numerous religious motives which brought property into the hands of 
 the monks, there is another very legitimate one, which has always been 
 regarded as one of the justest titles of acquisition. The monks cultivated 
 waste lands, dried up marshes, constructed roads, restrained rivers, and built 
 bridges. A considerable portion of Europe had never received cultivation 
 from the hands of man ; the forests, the lakes, the rivers, the thickets, were 
 as rough as they had been left by the hand of nature. The monasteries 
 which were founded here and there, were centres, of action which civilized 
 nations established in new countries, the face of which they purposed to 
 change. Are not those who reclaim a waste country, cultivate it, and fill it 
 with inhabitants, worthy of preserving large possessions there ? Who knows 
 how many cities and towns arose under the shadow of the abbeys 1 These 
 religious foundations joined all the'riches and power of feudal lords with the 
 mild and beneficent influence of religious authority. And it is to the exist- 
 ence of monasteries in retired places that we owe the establishment of life in 
 the country, which would have been impossible without the ascendancy and 
 beneficial influence of the powerful abbeys. (Balmez, Protestantism and 
 Catholicism, c. xli.) How accurately all this is applicable to our own coun- 
 try and history from the earliest times, see MaoCabe's Catholic History of 
 England. 
 
 * And the prayers by which they were accompanied. St. Augustine, him- 
 self one of the founders of religious orders, said that those who were excited 
 to a contemplative life, were conducive to the good of the republic by those 
 prayers. The illustrious emperor who ruled Italy, Germany, and France, 
 said, " God can assist us more by the prayers of his saints, than by all the 
 military forces in the world": and in our own Anglo-Saxon laws it is laid 
 down as the great duty of monks " fervently to intercede for all Christian 
 people." — Laws of King Eihelred. 
 
13 HISTORY OF THE LAWS OF MORTMAIN, 
 
 was just and reasonable'.* St. Gregory thus laid down the 
 Catholic teaching in his ' Morals', He who gives his external 
 substance to the needy but does not preserve himself free from 
 sin, gives his property to God and himself to the devil."t 
 
 "This", says Digby, "is not the language of those who thirst 
 for the riches of the laity." 
 
 In our own country, the rise of religious houses is coeval with 
 the earliest origin of Christianity. The monastery of Glaston- 
 bury existed in the time of the ancient Britons, ages before the 
 invasion of the Saxons. J And after the Saxons were converted 
 to Christianity this ancient foundation was restored, and similar 
 ones established all over the country. The Catholic Church, of 
 which these were the first fruits, was thus in active working in 
 this country, ages before there was a crown or realm of England. 
 And, as the Church was the basis of our national, § so her 
 religious houses were the origin of our municipal system, 
 for the foundation of a monastery was usually followed by the 
 rise of a town around its precincts, to which privileges were 
 accorded by monarchs out of love for the religious houses to 
 which they formed a sort of suburb. Thus arose our borough 
 towns. And there is scarcely an ancient city or town in the 
 kingdom, the foundation of which cannot be traced to the es- 
 tablishment of a religious house. || The archiepiscopal see 
 of Canterbury exercised her authority over all the Saxon states 
 long before Egbert exercised sovereignty over all England. 
 And long anterior to that era, successive Anglo-Saxon sovereigns 
 
 * " Hoc vero quod quisque Deo juste et rationdbiliter de rebus suis offert, 
 firmiter ecclesia tenere debet." Cited Mores Catholici, b. i, c. iii, and in 
 Thomassinus, De vet. Eccles. Disciplina, pars iii, lib. i, c. iv. 
 
 + A widow left her house to the Church, and her son unprovided for : he 
 complained to tMs Pope Gregory, who ordered it to be restored. — Thomas- 
 sinus, iii, i, 4. 
 
 % See William of Malmesbury's History. 
 
 §> Thus the celebrated laws of Edward the Confessor commence thus: 
 " A sancta itaque ecclesia exordium sumentes per quam rex et regnum solide 
 subsistere haberent"- (Ang.-Sax. Laws.) And in point of fact, Theodore, 
 as Archbishop of Canterbury under the Holy See, " governed" aU England 
 long before Egbert ascended its throne. 
 
 II See numerous instances mentioned in MacCabe's Catholic History; and 
 see an article in the Rangier for November on the subject. 
 
HISTORY OF THE LAWS OF MORTMAIN. 13 
 
 and their subjects had founded and endowed most of the reli- 
 gious houses which of old existed in England.* The example 
 of the princes was imitated by the thanes,. and the freemen who 
 were " tenants " or owners of land. The tenure of land usually- 
 involved liability to the king or the thanes to pay certain tri- 
 butes, and certain contributions were due for the service of the 
 state. The degree in which these we're dispensed with or re- 
 served, depended on the nature of the grant in each case.f 
 
 * See Lingard's Angh-8axon Church, and MacCabe's Catholic History. 
 See also Bede's History. 
 
 + Thus we find Ethelred granting by charter to the church of Canterbury 
 a portion of his demesne lands. See the charter cited at length in M'Cabe's 
 Catholic History of England (in the Anglo-Saxon age) vol. i, p. 202. Sir 
 F. Palgrave gives a list of charters similar to this, Rise and Progress of 
 English Commonwealth, vol. ii. So Wulfer gives to the abbey of Medeshamp- 
 stead, a large tract of land. {Saxon Chron. a.d. 656.) See charter cited, 
 MacCabe's Catholic History, vol. i, p. 343. So Withred gives a charter to the 
 Archbishop of Canterbury, declaring " that all minsters and churches given 
 and bequeathed to the worship of God by his predecessors, should be con- 
 firmed to the Church ; and that no layman should have any right to possess 
 himself of any church, or of any of the things that belong to the Church. 
 And that no Icing should have any lordship over churches or their appur- 
 tenances". {Saxon Chron. p. 58.) See charter cited in Cath. Hist. Eng. p. 
 490. So time confirmed similar privileges to the monasteries of Glastonbury 
 and Mahnsbury. {Cath. Hist. vol. i, p. 322.) So Ethelbald founded Croy- 
 land, A.D. 716. {lb. p. 559.) So Ofia founded St. Alban's, and his son made 
 restitution of some possessions which had been alienated therefrom. {H>. pp. 
 714, 715.) So Alfred founded a nunnery at Shaftesbury (well endowed) and 
 another at Winchester, (Spelman's Life of Alfred, v, b. iii, sec. 14, p. 167.) 
 See Dugdale's Monasticon, vol. ii, p. 472. 
 
 Thus Theodore, Archbishop of Canterbury, founded the first nunnery in 
 England at Chertsey in Surrey. So a thane founded Malmsbury monastery. 
 {Cath. Hist. vol. i, 64.) So Earl Ordgar built a monastery at Tavistock, a.d. 
 906. (Rog. de Wendover, vol. i, p. 10.) So Leofric Earl of Coventry founded 
 a monastery there, and enriched with lands the churches of Worcester, St. 
 Mary of Stone, and St. Wereburg, and the monasteries of Evesham, Wenloe, 
 and Lenton. (Wendover, p. 315.) No trace can be found of any royal 
 license for these grants ; and, on the contrary, we find — without any appear- 
 ance of such license or confirmation from the king — earls or thanes accom- 
 panying such grants with charter of exemption from secular service ; as, for 
 instance, in the case of the foundation of Tynemouth abbey by the Earl of 
 Northumberland. (Wendover, p. 361.) 
 
 It appears that originally, unless otherwise expressed, the grant of land to 
 
14 HISTOnY OF THE LAWS OF MORTMAIN. 
 
 There was clearly no restraint on the alienation of land to reli- 
 gious houses, since we find from Saxon history that, in order to 
 
 religious houses did not involve exemption from secular services to tlie state ; 
 rendered, if not in person, at least by contributions, and perhaps by substi- 
 tutes. And it is to be observed, that though the monks were precluded from 
 military service, their tenants were not ; so that it is not easy to see how the 
 grant of lands to religious houses could have materially tended to weaken 
 the defences of the kingdom. Nevertheless, from the earliest times, as, for 
 instance, in the memorable Anglo-Saxon charter granting to the Church in 
 perpetuity a tenth part of the lands of the country — the lands are entirely 
 exempt from secular services ; and that charter reciting, as the very reason 
 for it, the " invasion offoemen". Ethelwolf granted a charter of immunities 
 to all England : " Apponam, scriptum lihertatis ecclesiarum quod toti concessit 
 Anglice." {W. Malmsb. Oest. Reg. Ang. lib. ii, sec. 113.) By this he granted 
 every tenth portion of land to be endowed with perpetual enfranchisement, 
 and preserved from all secidar services, and all royal covirihutions ; without 
 being called upon to aid in military array, the construction of bridges, or 
 the maintenance of fortresses." {Cath. Hist. Eng. vol. ii, p. 57. The very 
 exemption from being called upon to aid in military array, proves that, 
 withovi such exemption, the religious houses would be liable thereto. Here 
 the reader will remark the " trinoda necessitas", defined by Sir P. Palgrave, 
 carefully liberates the lands granted from aU such services; which seems 
 to show the strength of Anglo-Saxon faith. 
 
 It is very important to observe, that on all these occasions, even when 
 kings were the grantors or founders, the signatures of as many persons of 
 rank as possible were attached to the charter, as '' confirming it", i.e. as 
 witnesses, and these have often been cited to show the necessity for licence. 
 Thus the first charter cited of Ethelbert concludes thus : " I have confirmed 
 this donation with the sign of the cross. I Augustine, archbishop, a con- 
 senting witness, subscribed ; and then follow other signatures of bishops or 
 barons. So in Wulfe's charter to Peterborough, or Medeshampsted : " I 
 confirm my grant in the presence of kings, earls, and thanes, the witnesses 
 of my gift"; and then follow signatures of three other kings his allies (who 
 of course could have no interest in the land to. convey or confirm), and 
 several bishops of other sees. So King Edmund gave to St. Edmund a 
 farm and tract of land", which grant he with pious devotion confirmed by 
 the subscription of the bishops, earls, and barons." (Rog. de Wendover, vol. 
 i, p. 252, Bohn's edit.) 
 
 The sources from whence the munificent donations of the Anglo-Saxon 
 kings were derived seem to have been two-fold. As the first, we may 
 mention the demesne lands to which the Saxon kings had succeeded. The 
 second is more obscurely indicated; but it appears to have existed in 
 the power, as secured by the king and the Witan, of granting a part of the 
 common lands of a township, together with the " Bondes" or " Manentes" 
 
HISTORY OF THE LAWS OF MOIITMAIN. 15 
 
 obtain its liberation from secular services and the other proceed- 
 ings which usually accompanied such alienationSj a practice pre- 
 vailed oi pretended foundations of religious houses.* And these 
 were so numerous and injurious, as to occasion repeated efforts 
 on the part of the Church to restrain the practice ; notwith- 
 standing which, no law appears to have been passed to prevent 
 alienations of land to religious houses. The only restriction 
 imposed by the Saxon law on the alienation of land, was one 
 which, by way of exception, proves that perfect freedom was the 
 general rule. This was a law of Alfred's agaijist alienation of 
 lands intended by the original donors to descend in the family — 
 in modern language, lands " entailed".t 
 
 It is clear from our early history, that the religious houses 
 exercised a most beneficial influence upon the^ nation, and ful- 
 filled indeed the most important offices of civilization and Chris- 
 
 who had settled upon the appropriated tenements, and that in such case the 
 grant was a transfer of superiority ; by which means each portion so secured 
 became a new township. (Sir F, Palgrave's Rise-and Progress of the English 
 Commonwealth, vol. i, p. 166.) But the liberality of the Anglo-Saxon 
 monarchs did not lead them to destroy the services due to the state. They 
 maintained their royal pre-eminence, and provided for the religious instruc- 
 tion of the people without impairing the resources of the community." The 
 decrees of Ethelbald which recite and explain the Kentish charter, reserve 
 in the most express terms the three important duties, in which aU the people 
 were bound to share, when enjoined by the king's edict, command, or sum- 
 mons ; — the payment of the imposts rec[uired for the repair of the bridges and 
 highways, the contribution for keeping up the walls and fortifications of the. 
 strongholds, and the military services rec[uired for the resistance of the 
 enemy and the defence of the kingdom." (Palgrave's Rise and Progress of 
 English Convmonwecdth, vol. i, 166. See also Kemble's Codex Diplomaticus, 
 introduction, vol. i, pp. li-liv.) Few grants were ever made to the Church, 
 without the reservation of the trinoda neoessitas: sometimes, instead of leav- 
 ing the military contingent in uncertainty, the number of vassals the abbot 
 was to send to the war was specified. 
 
 * Lingard's Anglo-Saxon Church, vol. i, p. 121 ; MacCabe's Catholic His- 
 tory, citing a decree of Council of Cloveshoe. 
 
 t " The man who has boc land, and which his kindred left him, must not 
 give it from his kindred, if there be writing or witness that it was forbidden 
 by those men who at first -acquired it, and by those who gave it to him, that 
 he should do so." This appears to imply that lands might be left by will ; 
 and also that lands which a party himself acquired, by purchase or absolute 
 gift, he could grant or devise away without any restriction. 
 
16 HISTORY OV THE LAWS OF MORTMAIN. 
 
 tianization.* Nor need anything be said as to the generous 
 hospitality which all contemporary historians ascribe to religious 
 houses,t and which repeated acts of Parliament recite and set 
 forth. 
 
 That the alienation of land to religious houses had been a 
 benefit, and was not a detriment to the nation, is apparent from 
 this, that the Conqueror passed no laws against it, not even 
 when, towards the end of his reign, he rapidly established and 
 enforced the feudal system. There was no reason to do so, as 
 he exacted from them to the full equivalent, and even for mili- 
 tary services, an example followed by all succeeding sovereigns 
 of the Norman line, who as regularly raised revenues from the 
 lands of the religious houses as from any others ; J and even 
 
 * The Saxon Chronicle says ; " In those days there was little righteous- 
 ness in the land among any men but the monks." {Saxon Chronicle, 10th 
 Cent.) From the time of King Ethelbert to the Reformation, nine cathe- 
 drals were served by monks : York, Winchester, Sherborne, Rochester, Nor- 
 wich, Lindisfarne, Durham, Ely, and Coventry. And attached to each 
 cathedral and every monastery were schools, not for the children of the rich, 
 but of the poor, who were thus certain of receiving a good education, if only 
 they were near a religious house. (See Mr. Whiston's pamphlet on Cathedral 
 Trusts.) In the tenth, eleventh, and twelfth centuries, it was almost exclu- 
 sively the monasteries which supplied men worthy of the episcopacy. And 
 it is unnecessary to refer to the invaluable services of the monks, not only 
 in preserving literature, but in multiplying copies of the scriptural and 
 liturgical writings. (See MacGabe's Catholic History, and Merryweather's 
 Bibliomania, a Protestant publication.) 
 
 t William of Malmesbury records that, in the monastery of Reading, 
 founded by Henry I, it being a great thoroughfare, more money was ex- 
 pended in hospitably entertaining poor guests, than in supporting the whole 
 community of monks. And in another monastery there used to be more 
 than a huudrecftables laid out in one day. So in the monastery of Durham 
 there was a house of hospitality called the Guest Hall, in which entertain-' 
 ment was given to all sorts, noble and gentle, and of what degree soever, 
 that came thither as strangers. At Glastonbury, the Gothic hostel belong- 
 ing to the abbey, called the Abbot's Inn, stiU exists. It was for the accom- 
 modation of persons who could not be lodged in the abbey. 
 
 J We read in an ancient historian that "King William despoiled the 
 monasteries, and placed under military rule all the bishoprics and abbacies 
 which held baronies, and which up to that time had been free from secular 
 authorities ; enrolling at his own pleasure each of the bishoprics and abba- 
 cies, as to how many soldiers each should furnish to him and his successors 
 
HISTORY OF THE LAWS OP MORTMAIN. 17 
 
 in the Saxon times, the public services were usually required on 
 church lands. Thus there was, so far as the public service or 
 the national defence was concerned, no ground to object to alien- 
 ation of land to religious houses after, any more than before, 
 the feudal system : and it appears plainly, the public interests 
 suffered, necessarily, no detriment from the holding of land by 
 religious houses ; or none that could not easily be remedied. In 
 point of fact, no law at all existed, restraining the alienation of land 
 (other than that of Alfred as to entailed lands) up to the time of 
 Henry III. For we find it laid down in the laws of Henry I in 
 terms to the same effect as we have stated it in Saxon times, 
 that all land could be alienated, except such as had been acquired 
 upon condition that it should not.* 
 
 The feudal system f being now established, however, under 
 
 in time of war, (Roger de Wendover, vol. i, a.d. 1070,) and ordering a census 
 to be taken of aU cities, castles, villages, and houses, and of how many 
 soldiers there might be in each county : which was written and recorded at 
 Westminster, in the book called ' Domesday'." {Ibid. a.d. 1086.) Another 
 writer says : " He sent laymen over all England, into every shire, and caused 
 them to write down how much land belonged to the archbishops, bishops, 
 abbotts, and earls {Saxon Chron. a.d. 1085) ; and billetted his soldiers upon 
 his subjects throughout the nation, and they provided for them every man 
 according to the land that he possessed." {Ibid.) 
 
 * Emptores vel acquisitiones suas det cui magis velit : tamen antequam 
 ei parentes dederunt non mittat extra cognationem suam. (Laws Henry I, 
 C.7.) 
 
 t The understanding of the feudal system is essential to a correct compre- 
 hending of the nature of our ancient laws relating to real property. Even Lord 
 Coke's authority on all constitutional questions, is diminished by his neglect of 
 this subject; and Spelman says : " I do marvel many times that my Lord Coke 
 hath not turned to this field of learning, whence so many roots of our law 
 have of old been taken." (Spelm. Orig. of Terms, c. 8.) The system con- 
 sisted in the allotment of the lands of a conquered country among the chief 
 barons, to be by them dealt out in smaller allotments among knights or 
 others. The allotments were called feuds {feoda), fiefs, or fees, which words 
 signify a reward; and the condition annexed to the allotments w&b, faith- 
 ful service at home and abroad: on breach of which condition, and non- 
 performance of the service, the fee or feud was ipso facto forfeited. And thus 
 every receiver of land, or feudatory, was bound to be ready when called upon 
 by his immediate lord to render him such service. There are traces of 
 the. system in Saxon times, but it does not seem to have existed with much 
 vigour or eflFect. And even the Conqueror did not introduce it at once ; but 
 
 C 
 
18 HISTORY OF THE LAWS OF MORTMAIN. 
 
 which the lands were held upon condition of petsonal military- 
 service; and which required their descent according to the 
 principle of primogeniture, the very rule which, as had been re- 
 cognized in Saxon times, involved a restriction on alienation of 
 the land without the consent of the feudal lord, at least unless 
 the new tenant would be equally able to render such services. 
 And in the reign of Henry II, Grranville thus lays the law down : 
 
 " Every freeman possessed of land may give a certain part of it with his 
 daughter or any other woman in marriagehood, whether he has any heir or 
 not, or whether his heir, if he have one, consent to such a disposition or not. 
 Every one may also give a certain part of his freehold estate to any person 
 he chooses, in remuneration of his services, or to a religious establishment, in 
 free dims : and if seisin follow the donation, the land shall perpetually/ remain 
 to the person to whom it is given, and his heirs, if the terms of the gift go 
 to that extent. But if such a donation should ndt be followed up by seisin, 
 nothing can, after the death of the donor, be claimed with effect in virtue of 
 it, contrary to the wUl of the heir j because such a disposition is usually 
 interpreted by the law of the realm rather as a naked promise, than as a 
 real promise or donation. Though it is thus, generally speaking, lawful for 
 a man in his lifetime freely to dispose of the reasonable part of his land, in 
 such a manner as he may feel inclined, yet the same permission is not - 
 allowed to any one on his death-bed, because the distribution would pro- 
 
 towards the close of his reign, as the 8axon Chronicle states, an invasion was 
 apprehended from Denmark, and the consequence was a great council at 
 Salisbury, at which the feodal system was rigidly established ; and it was 
 ordained that all the barons and knights should hold themselves always 
 ready to serve in arms, whenever necessary, according to the duty they owed 
 in respect of their several fees. The fees were granted for ever (whence the 
 phrase in fee), and the male heirs alone succeeded, of the blood of the first 
 holder. So essential was it to secure the feudal services, that, though 
 originally all the sons succeeded, yet, as this was found to weaken the 
 strength of the feudal tenure, by dividing the services, they were ultimately 
 held to descend according to the rule of primogeniture. Of course it was a 
 natural incident of the system, for the same reason, that 'the feudatory could 
 not aliene or dispose of his feud, whether by grant or by devise, without the 
 consent of his lord; for the very reason of conferring the feud, and the 
 essential condition on which it was held, was the personal ability of the 
 "tenaiU in fee" to serve in war; and it was not fit that he should transfer it 
 to others who might be less able. There were several species of tenure under 
 the system, of which the first and most universal was that of " knight ser- 
 vice", created by general gift or grant of land, without any express condi- 
 tion. So that, under the feudal system, gifts of land ordinarily involved 
 feudal service, unless to ecclesiastics : as to which, see post. 
 
HISTORY OF THE LAWS OF KOETMAIN. 19 
 
 bably then be imprudent. Hence it is to be presumed that, if a man labour- 
 ing under a mental disease should then for the first time set about makiiig 
 a disposition of his land, — a thing never thought of by him in the hour of 
 health, — the act is rather the result of the mind's insanity than its delibera- 
 tion. 'But yet a gift of this description, if made to any one by the last will, 
 shall be valid, if with the consent of the heir, and confirmed by his acqui- 
 escence in it." 
 
 It will be remarked, that the restriction upon death-bed dis- 
 positions applies to all such dispositions, whether to religious 
 houses, or to relatives, or others; and it obviously, indeed, was 
 intended to apply especially to the latter, by reason of the feudal 
 rule respecting alienation of the land (without the lord's con- 
 sent) either from the tenant or from his heir ; to whom, accord- 
 ing to the law of primogeniture, it was required to descend, so 
 that the lord might have those services, on condition of render- 
 ing which the land was held. It is to-be observed also, that the 
 law as thus laid down applied only to feudal lands, to which 
 alone the reason was applicable, and which comprised only a 
 portion of the lands of the country ; for instance, not including 
 the lands held by " gavelkind", that is, the old Saxon te- 
 nure, under which lands were divided among all the children, 
 and were devisable under the restriction before referred to; nor, 
 again, did the feudal law apply to the lands or tenements in 
 borough towns, held on " burgage" tenure («'. e. payment of rent- 
 service), and, as one of the privileges conferred on boroughs by 
 reason of their monastic origins,* devisable by will, even when 
 the general law was altered so as to preclude such disposition. 
 Again it is to be observed, that the law, as laid down by Glan- 
 ville, refers repeatedly to a "certain" or "reasonable" portion 
 of the lands as alienable for different, and this meant, such 
 as was reasonable either, on the one hand, with reference to the 
 requisitions of the feudal system, or to the proper provision for 
 relations on the other. If the lands were held on feudal tenure, 
 they could not be alienated at any time, or to any parties, or for 
 any purposes so as to deprive the tenant or his heir of the power 
 of rendering the feudal services ; and whether so held or not, 
 the law of Catholic England, in conformity with the law of the 
 Church, recognized it as the first duty of a parent to provide for 
 
 * See Swinburne on Wills. 
 
20 HISTORY OF THE LAWS OF MORTMAIN. 
 
 his children ; and only re-enacted or confirmed the law of the 
 Church by establishing this principle both with respect to real 
 property and personal, by requiring a 'reasonable part' to de- 
 scend to the heir, the widow, or the next of kin. Hence, the 
 law as already cited with respect to land ; and hence a similar 
 law as respected personalty, which prevailed more or less until 
 after the Reformation.* And, as the law with respect to real 
 property, as it existed either before or after the Conquest, so far 
 from having been dictated by any jealousy of the Church or her 
 religious orders, displayed a disposition quite the reverse; so as 
 respected personalty, the same disposition was strikingly ex- 
 hibited in the law which provided, that if a party died intestate 
 his personal property should be administered by the bishop, be- 
 cause (says an old legal author, one of our most valued), " the 
 law assumed, that spiritual persons had a better conscience than 
 laymen, and had better knowledge of what was for the good of 
 the deceased's soul'^-f and, though modern writers, ever anxious 
 for a sneer or a sarcasm on the Church, have represented, that 
 it was considered best for the deceased's soul, fo dispose of all 
 his property to pious uses ; the law had been laid down in the 
 Saxon times recognizing and re-enacting the law of the Church, 
 that it should be divided among the widow, children, and next 
 of kin iX which was construed by Magna Charta to mean a rea- 
 sonable portion, and whether there was a will or not.§ And it 
 was afterwards laid down, in strict conformity with the law of 
 the Church, which makes payment of debts an obligation pre- 
 cedent to every other duty, that the bishop should pay the debts 
 first, paying the reasonable parts of the relations out of the re- 
 sidue, || and so remained the law, as to personalty. 
 
 To return, however, to the law as to real property ; it will 
 have been observed, that Glanville recognizes the right of the 
 feudal tenant of land to alienate a reasonable portion of it in 
 remuneration of services, that is to be held of himself on the 
 
 * See Bracton, 1. ii, c. 26. t Perkins, sec. 486. 
 
 J Sive quis fuerit intestates mortuus possessiones uxori, liberis,'' et cogna- 
 tione proximis pro sue cuique jure distribuantur. (Laws of K. Canute c. 68 ) 
 
 § Omnia catalla cedunt defuncto salvi uxori ipsius et pueros suis rationa- 
 bilibus partibus suis. (9 Henry III, c. 18.) 
 
 11 13 Edward I. ' 
 
HISTORY OF THE LAWS OP MORTMAIN. 21 
 
 same tenure as that on wliicli he had received itj all feudal land 
 being at once received as a reward for past, and held on condi- 
 tion of future services. This system of sub-infeudation, or sub- 
 division of the soil, could be no substantial detriment as to the 
 main object of feudal tenure, but rather a benefit, since the 
 tenant had the military services of his sub-tenant to bring to 
 his lord, as well as his own. But it made a great difference as 
 to the incidents of feudal tenure;* especially the fines receivable 
 on marriages, wardships, or reliefs. For the chief lord could 
 only assess these on the value of the land retained by his tenant, 
 who received from his sub-tenant the fines arising in respect of 
 the land held under the sub-infeudation. Still, as the incidents 
 were only accessory to the principal, which were military service 
 and feudal fealty, it was some time before any attempt was made, 
 on the part of the chief lords, to put a stop to this ; and, when 
 the attempt was made, it was under a false pretext. In Magna 
 Charta, in the reign of Henry III, it was enacted, " That no 
 freeman shall, henceforth, give or alien any more of his land, 
 but so that of the residue the lord of the fee may have the ser- 
 vice done unto him, which belongeth to the fee." Here, the 
 word "service" is used in a sense ambiguous or equivocal, as 
 embracing not only the feudal service, but its oppressive and 
 lucrative incidents. On precisely the same policy, and perhaps 
 with better reason, another clause was inserted in the Charter. 
 The purpose of the former one was precisely the same as the 
 law of primogeniture — to prevent the feudal lords from being 
 weakened, by division of their services among too many. Under 
 this law, it is obvious that the tenant might give or share as 
 mucb of his land as he pleased to a religious house, provided he 
 performed the same services. At that time, however, tenure 
 
 * The incidents of this service were seven : Aids, reliefs, premier seisin, 
 wardship, marriages, fines for alienation and escheat. Aids were contribu- 
 tions to the lords in times of difficulty or distress. Reliefs were fines on the 
 death of a feudal tenant. Premier seisin was a fine on the descent to the 
 heir, if he were of full age. Wardship was the right of receiving the rents 
 and profits of a fee, when it had descended to a heir who was under age. 
 Marriages were fines on marriage of a feudal tenant. Fines on alienation 
 were for the lord's consent to a transfer of the fee. And escheats were eciui- 
 valent to forfeitures of the fees. 
 
23 HISTORY OF THE LAWS OF MORTMAIN. 
 
 under the Church was so much less burdensome, that it was a 
 common saying, "it is better to live under the crosier than 
 uader the lance" ; and there was, consequently, a distinct ten- 
 deiicy and temptation to evade the feudal services, thus: by 
 giving the fee to a religious house, and then taking it back 
 again to hold of such religious house, the result of which of course 
 wasj-that the tenant retained his land, while the lord lost his 
 tenant; and the Churches acqvired not the laud, but the lord- 
 ship. Of course this was not an alienation of land to religious 
 houses, it was simply an evasion of the lord's.rights ; it was an 
 arrangement of convenience and advantage, not a gift of charity 
 and piety. The Church gained a little — the incidental profits of 
 lordship; but the tenant gained most, and lost nothing; and, 
 while he gave little, what he gave was not his own, but his lord's. 
 Hence, there was a clause in the next edition of the great 
 Charter in 1325, commonly and erroneously imagined to have 
 been a clause against alienations of land to religious houses, but 
 really against an evasion of the feudal rights of the lord, by a 
 transfer of the lordship : — " It shall not be lawful, from hence- 
 forth to any, to give his land to any religious house, to take the 
 same land again to hold of the same house; nor shall it be lawful 
 for a religious house so to take the land of any one, and to give 
 the same to him, to he held hy him from whom it was received; 
 and if any, henceforth, shall so give his land to a religious house, 
 the gift shall be void, and the land accrue to the lord of the fee." 
 This clearly implies, as does the previous clause already alluded 
 to, that the tenant could (at least under the restriction of that 
 clause) "give his land to a religious house"; and does not at all 
 prohibit his so doing,T)ut only precludes a colourable gift for the 
 purpose of a retransfer, and the creation of a new tenancy. The 
 clause is not, that he shall not give his land, but, shall not so 
 give it, as to take it again as tenant to the religious houses ; yet 
 modern writers always not only avoid all allusion to the previous 
 clause in pari materid, but omitting the previous portion of 
 this latter clause, and the word of reference to it " so" give the 
 latter part of the clause by itself, as if it read thus,* " If any 
 
 * The clause is mistranslated in the most approved editions of the 
 Statutes : 
 
HISTORY OF THE LAWS OF MORTMAIN. 23 
 
 man shall give his land to a religious house, the gift shall be 
 void." The sense is, on the contrary, that a man may give his 
 land to a religious house, but must give it out and out, and must 
 not give the lordship under pretence of giving the land.^ And 
 thus the clause in the Great Charter, commonly called the first 
 law of mortmain, was not so, and was not a law to prevent real 
 alienations to religious houses, but such as were only pretended; 
 and the terms of the law prove, that men were allowed to alienate 
 even their feudal lands to the Church, so that they retained 
 enough to do feudal service. And so remained the law during 
 the reign of Henry III. 
 
 The religious houses which acquired the lordship of lands, 
 would, of course, have the ordinary feudal right of entering upon 
 them and taking possession on any of the feudal forfeitures, or 
 "escheats" arising; and when they thus, or by ordinary alien- 
 ation, became tenants of land, they held it in mortmain [i. e. in 
 dead hands f), the members of these communities being deemed 
 dead in law ; and the communities having perpetual succession 
 like a mayor and corporation at the present day ; the effect of 
 
 " Nee liceat de cetero alicui dare terrain suam domui religiosi ita quod 
 illam resumat de eadem domo tenendam. Nee lieeat alieui domui religiosi 
 terrain alicujus sic accipere quod tradat illam illi a quo eam reeepit tenen- 
 dam. Si quis autem de cetero terram suam alicui domui religiosi sic de- 
 derit domum suum cassetur, etc." The whole refers to the first part, of 
 which the gist is, " ita quod illam resumat de eadem domo tenendam". 
 
 * The chief source of the wealth of monasteries was precaries^-gi&'ats of 
 land, the Mse of which the recipient reserved to himself or to his next heir ; 
 or received them from the monasteries as prestaries for the payment of an 
 annual tax. It happened also, not unfrequently, that other proprietors gave 
 as precaries portions of their own lands to monasteries, to obtain from them 
 others, which they desired, both to become the property of the monastery at 
 the death of the contractor. — Bollinger's History of tlie Church, Third Period, 
 chap. iv. sec. 6. Many, either through piety or to avoid the oppression of 
 the barons, or because they found it more advantageous, became dependants 
 of the bishops, by surrendering their property to the Church ; a practice 
 which the Norman monarchs opposed, more particularly when it was adopted 
 to escape military conscription. — Ibid. sect. 2. The property of the Church 
 was free from all burdens except trinoda necessitas — the levies for the support 
 of the army, the repairs of lands and bridges, and the mainienance of fort- 
 resses. — Ibid. sect. 4. 
 
 t This is Coke's explanation of the word. 
 
24 HISTORY OF THE LAWS OF MORTMAIN. 
 
 this was, a loss to the lords of all the most valuable incidents 
 of feudal service, the fines due for marriages, and the profits 
 which arose on wardship of heirs. Hence, in 1281, the next 
 statute on the subject,* it was recited, " That of late it was pro- 
 vided that religious men should not enter into the fees of any 
 land without leave and will of the chief lord of whom such fees 
 be holden.f And notwithstanding, such religious men have 
 entered as well into their own fees as into the fees of other men, 
 buying them and sometimes receiving them of the gift of others, 
 whereby the services that are due of such fees, and which at the 
 beginning were provided for the defence of the realm, are 
 wrongfully withdrawn, and the chief lords do lose their escheats 
 of the same." The latter is the real reason ; the previous one 
 was plainly a pretence; for, whether before or after the Conquest, 
 the law was, that the lands of religious houses contributed to' 
 the defence of the realm. And the statute proceeds to provide, 
 in language clearly alluding to the colorable alienations already 
 referred to : — " That no person, religious or other, buy or sell 
 any lands, or under colour of gift or lease, receive by reason of 
 any title, lands or tenements, or appropriate by any means 
 whereby the same may this wise come into mortmain." It is 
 plain from these latter words, that this, which is really the first 
 statute of mortmain, only applies to alienations to corporate 
 bodies; since they alone held in mortmain. 
 
 The statute, by way of remedy, provides, " That if any person 
 do presume by craft or artifice to offend against this statute, it 
 shall be lawful for the lord of the fee to enter into the land so 
 aliened within a year from the time of alienation, and to hold it 
 in fee." It is clear from this clause, that this statute only applies 
 to land held in feudal tenure, for to such only would there be a 
 " lord of the fee ". And it was by no means all the land in the 
 realm which was allotted in feudal tenure. There was the land 
 held in gavelkind, which was, under the Saxon tenure, devisable 
 by will, and divisible among all the sons instead of the eldest j 
 the land held on burgage tenure, i. e. on ordinary rent service. 
 
 * 7 Edward I. 
 
 t This is not what had been in terms "provided", but is the legal efiect 
 and practical result of the previous statute on the subject, 
 
HISXOKY OF THE LAWS 01" MORTMAIN. 25 
 
 and by custom devisable ; and tbe land comprised in copyhold 
 manorSj held on other services than of chivalry. ' And even 
 within its limited scope, the statute does not absolutely pro- 
 hibit the alienation, at least so as to make it void ; but only 
 enalDles the lord to make it void by entering upon it; and this he 
 would not do if he received an adequate fine for the alienation, 
 which on ordinary feudal principles he was entitled to on any 
 alienation, and which would satisfy the purview of the statute as 
 declared in the preamble, namely, that religious men should 
 not enter into the fees of any, without licence and will of the 
 lord. Let it be clearly recollected then, that this, the first and 
 principal law of mortmain, properly so called, i. e. relating to the 
 holding of land by spiritual corporations, only applied to feudal 
 lands, and did nothing more, practically, than enable the lord to 
 assess an arbitrary fine for alienation. 
 
 This construction of these statutes is upheld by the celebrated 
 statute of quia emptores (of Edward I) which, though not com- 
 monly referred to as having any connexion with them, is clearly 
 in pari materia, and one clause of which actually relates to 
 mortmain : — 
 
 " Forasmncii as purchasers of lands and tenements of the fees of great 
 men and other lords, have entered into their fees to the prejudice of the lords 
 to whom the freeholders of such great men have sold their lands to he holden 
 in fee of the feoffors and not of the chief lords of the fees, wherehy the same 
 chief lords have lost their escheats, marriages, and wardships belonging to 
 their fees, which thing seemed very hard and extreme unto those lords, and 
 moreover manifest disinheritance": — "it is ordained, that it shall he lawful 
 to every freeman to sell his lands at his own pleasure, and that the feoffee 
 shall hold the same of the chief lord of the fee by such services as his feoffor 
 held them." 
 
 All legal writers consider this as designed to prevent division 
 of the feudal services by subinfeudation, and the next clause is 
 clearly in continuation of it. 
 
 " And it is to be understood, that by the said sale such lands 
 shall in no case come into mortmain." 
 
 It plainly appears then, that the whole purview of these sta- 
 tutes was, not the preventing of land from being alienated to 
 religious houses, but the preservation of the feudal services and 
 the protection of the feudal lords j and hence, the first statute 
 of mortmain, i.e. the first applying to religious houses becoming 
 
26 HISTOUY OF THE LAWS OF MOETMAIN. 
 
 possessors of land, only provides that the lord or the king may 
 enter, and that with their licence the alienation may take place, 
 in accordance with the common feudal custom of a fine on alien- 
 ation. 
 
 That the scope of^;hese statutes was purely feudal will be seen 
 from a closer consideration of the celebrated statute commonly 
 called, from the words with which it commences, the statute 
 "quia emptores". This act, passed in the year 1390, recites, 
 " Forasmuch as purchasers of lands and tenements of the 
 fees of chief lords have often entered into their fees to the 
 prejudice of the lords, having purchased their lands, of the 
 tenants of the chief lords, to be holden on fee of their feof- 
 fees, and not of the chief lords of the fees": that is to say, 
 under the system of subinfeudation already referred to, the 
 tenants of chief lords aliening portions of their lands to 
 subtenants, holding of themselves on a tenure similar to 
 their own; the result being, of course, that they, the mesne 
 tenants, received the fines on wardships, marriages, or reliefs, 
 and„ above all, entered for escheats or forfeitures, whereby they 
 acquired the land itself as chief lords under the lord paramount, 
 so that the original lords lost first the lucrative incidents of 
 lordship, and then the lordship and the land. " Whereby the 
 said chief lords have lost their escheats, marriages, and ward- 
 ships, which they deemed very hard unto them, and moreover, 
 was in this case manifest disinheritance. " That is in case the 
 mesne tenant entered for escheat or forfeiture as lord, and be- 
 came tenant of the land itself to the lord paramount. Then it 
 is enacted, "That from henceforth it shall be lawful for every 
 freeman to sell at his own pleasure his lands and tenements, or 
 part of them, so that the feoffee shall hold the same lands or 
 tenements of the chief lord of the same fee, by such service and 
 custom as the feoffor held before." That is to say, any free- 
 holder might now alienate any part or all of his land, provided 
 that the donee must hpld it not of the donor, but of the donor's 
 lord ; who thus retained the lordship undiminished and unim- 
 poverished. As, however, the terms of this enactment would 
 have done away with the mortmain law, and allowed the tenant 
 to alienate to a religious house, from which the lord could not 
 receive the most lucrative incidents of feudal tenure ; there is a 
 
HISTORY OF THE LAWS OF MORTMAIN. 27 
 
 clause providing, " That, by the said sales the lands shall not 
 «ome into mortmain, contrary to the statute made thereupon of 
 late/' That is, " contrary to the statute" of the same reign, 
 the first statute of mortmain, which is here confirmed, and con- 
 firmed in a statute the scope and purview of which is confes- 
 sedly purely feudal, and solely for the security of feudal services.* 
 It is obvious, from this, that the laws of mortmain, as indeed 
 the very word necessarily implies, only could be applicable to 
 corporate bodies, which religious houses were. 
 
 And so far from the laws of mortmain beiiig aimed at reli- 
 gious houses, as such, that on the contrary, in this very reign, 
 only a few years afterwards, parliament provided a process by 
 which to secure them against its having any further effect upon 
 alienation of land to them, than to enable the lord to procure 
 compensation for losses he might sustain. It was ordained in the 
 year 1299, " That men of religion who would amortize lands 
 and tenements (^. e. held them in mortmain) should have writs 
 out of the Chancery to enquire upon all things, and there take 
 licence of the amortisements («' e. for licence to mortmain), if 
 the inquests do pass {i.e. the verdict be returned) for those who 
 purchased them, and after that it shall be certified to the 
 Chancellor, that he take a reasonable fine therefore, and after 
 
 * That the above is a correct statement of the history of the meaning of 
 these ancient laws on the subject, wUl be seen from the following extract 
 out of Blackstone, when treating, not of mortmain, but of feudal tenure; 
 and therefore, not having in his miad a subject on which he always wrote 
 untruthfully, he spoke the truth : 
 
 " In process of time it was found that the feudal lords began to grant, out 
 of the land they retained in their own possession, smaller manors, to inferior 
 tenants, to hold of themselves as lords paramount : and the inferior lords 
 began to grant out to others less estates, to hold as of themselves : and they 
 were so proceeding downwards, ad infinitum, till the superior lords observed 
 that, by this method of sub -infeudation, they lost their feudal profits of 
 wardships, marriages, and escheats, which fell into the hands of the mesne 
 or middle lords, who were the immediate superiors of the tenants who 
 actually occupied the land ; and also that the mesne lords themselves were 
 60 impoverished thereby, that they were disabled from performing their ser- 
 vices to their own superiors. This occasioned the clause in the statute of 9 
 Henry III, on Magna Charta; and afterwards the statute of Westminster 3 
 (18 Edward I.), or quia emptores." — Blackstone's Commentaries (Christian's 
 edition), b. ii, c. vi, p. 9. 
 
28 HISTORY OF THE LAWS OF MORTMAIN. 
 
 make delivery («. e. of the licences).* The statute, it will be 
 observed^ applies to no other alienations in mortmain but to 
 religious houses ; which alone had been mentioned in the first 
 mortmain law, only because no other corporate bodies then 
 existed; and when others arose, the law of mortmain was ex- 
 tended to them, and this relieving law was not applied to them. 
 There was a regular recognized procedure in the law for the 
 purpose of getting rid of the statute, upon satisfying the feudal 
 objection, and this objection alone ; and that was the writ of ad 
 - quod damnum/^ which says : — 
 
 " Where a man would give lands or tenements in mortmain, as to a reli- 
 gious house, or to a body politic in fee simple, then he ought to have the 
 king's licence, or the licence of the chief lords of whom the lands are holden, 
 to make such gift. And before such licences are granted, the proper course 
 is to sue unto the king to have a licence, and to sue this writ oiit of Chan- 
 cery directed to the escheator, to enquire what damage it would be to the 
 king or unto other persons ; if the king should grant the licence, and upon 
 the writ being returned and certified in Chancery, the king ought to give 
 leave, that the petitioner may alien or give in mortmain." 
 
 Here it will be observed, it is said " the king ought", as if the 
 writ were ex dehito justitice, and in the common course of law. 
 The form of the writ was as follows, and it will be remarked, 
 that the "damage" spoken of as arising from mortmain, is 
 entirely jaecMwi'ary or temporal: — 
 
 " We command, that you enquire if it will be to the damage of us or others, 
 if we grant to B. that he may giye a messuage, &c. to a certain chaplain, to 
 celebrate divine seryice for the soul of him, and the souls of his father, 
 mother, and ancestors, and of aU the faithful deceased, in the chapel of the 
 Blessed Mary of Westminster, or in the parochial church of the Blessed 
 Mary of Southwark every day, to have and to hold to the said chaplain and 
 his successors, celebrating divine service in the church aforesaid, or in the 
 chapel aforesaid every day, &o. And, if it be to the damage of us or others, 
 then, to what damage, &c. ; and of whom the said lands, &c. are held, and 
 by what services, and how much they are worth, according to the true value of 
 the same, &c., and if the lands remaining to B. (the grantor), beside the 
 donation aforesaid, be sufficient for the customs and services oioing to be done 
 and all the other charges he sustains, and hath been used to maintain as in 
 suits, aids, tallages, fines, amerciaments, contributions, and other charees." 
 
 The cases decided upon the statute of Edward, tend to the 
 * 27 Edward I. t Fitzherbert's Natural Brevium. 
 
HISTORY OF THE LAWS OF MORTMAIN. 29 
 
 same conclusion, and show that the law was not directed against 
 religious houses, as such, nor against religious trusts. 
 
 " It was found, by office in Chancery, that certain lands had been devised 
 by a man in fee, that the devisee might pay, yearly, six marks for the support 
 of a chaplain to celebrate (mass) annually, for ever, in the church of St. 
 Leonard, Eastcheap ; and that the rector and four of his parishioners, for 
 the time being, might distrain to levy the said rent whenever it should be in 
 arrear. And the mattfer being confessed (acknowledged in Chancery), wag 
 adjudged mortmain." — Booh of Assize (temp. Edward III), 43d year, 33. 
 
 To this case Brooke, who abridged it in the reign of James I, 
 adds a " quod meriem, for there was no corporation" ; and refprs 
 to another case, where it. was held no " amortisement ", (43 
 Assize 27). But there it was only adverse interest to the exe- 
 cutors, and there was no power of distress against the parson of 
 the parish, which was the real reason of the decision in the case 
 just cited, since a grant or a devise to a parson (or vicar), and 
 his successors were always held mortmain, because they consti- 
 tute a corporation sole.* 
 
 It will be remarked, how clearly these cases show that the 
 purview of the law of mortmain was entirely feudal, and related 
 purely to the loss of feudal services. 
 
 Accordingly this very distinction was drawn, and the very 
 reason assigned for the decision in another case, in which it 
 was found by office, 
 
 " That one had devised tenements to H., and his heirs for ever (in trust),, 
 to pay twelve marks a-year to find two chaplains to sing for his soul every 
 day in the church of St. Albans in Wood-street, London ; and then he de- 
 vised to the rector of the church, for the time being, 6s. 8d. to find for the 
 chaplains, vestments, a chalice, and a candle and other necessaries for them 
 to celebrate (mass), and it was found by the " office " to be in mortmain. 
 After argument, the. Chief Justice (Knivet) said. Inasmuch as in the will it 
 is contained that the parson of the church may distrain for the rent for ever, 
 and the parsons are perpetual {i. e. have succession as a " corporation sole") 
 and they can remove a chaplain and put another in his place, it is an amor- 
 tisement." 
 
 It had been mooted at the bar whether, if a chaplain forfeited, 
 the king would have the rent by way of escheat ; and the Court 
 held, that he could not ; for another would be appointed ; and 
 
 * Year Book, 40 Edward III; 28. And see Blackstono, Compos, and all 
 text writers. 
 
30 HISTORY OF THE LAWS OP MORTMAIN. 
 
 this, again, clearly points to the reason originally assigned by 
 Lord Coke for the law of mortmain, viz. ; theloss of feudal ser- 
 vices and other incidents of tenure, including especially escheats.' 
 And it is to be observed that, at the end of the report it is 
 added, " In the same will 6*. ^d. were devised for the support 
 of a lamp in the church, and it was adjudged no mortmain", i. e. 
 though land had been devised, in trust to find such a lamp ybr 
 ever. 
 
 " A clerk brought an assize against one J. for tenements in Langston ; 
 and J. pleaded that the tenements were devisable by usage, and that the 
 father devised the tenements to the clerk on condition that he should have 
 them for his life, and should chaunt, &c., and that after his death, the tene- 
 ments should remain to the commonalty of the said town, to find a perpetual 
 chaplain, &c. The reporter adds si quaere if land may be aliened to a com- 
 TnoTudty, i. e. cbrporation, without licence of the king, if it pleases the eschea- 
 tor to enter, although it is aliened, as here, to make divine service ; for the 
 lord is in the same mischief as to ward and marriage and all such other 
 profits"* 
 
 It will be remarked how clearly these cases show that the 
 purview of the law of mortmain was entirely feudal, and related 
 purely to the loss of feudal services. 
 
 It is plain, therefore, that in the reign of Edward III, there 
 was no legal objection to the taking of land by religious houses 
 or other ecclesiastical bodies,t where the feudal services were 
 secured, and no legal objection at all to the vesting of land, in 
 trust, for religious purposes, a practice which the cases cited show 
 prevailed to a great extent, and in some degree was made use 
 of to evade the law of mortmain ; a law, directed solely against 
 such alienations to corporations as entailed loss of feudal 
 services. 
 
 It was probably these cases which led to the statute 15 
 Richard II, enacting, 
 
 " That all they that be possessed by feoffment or other manner, to tlie use 
 of religious people or other spiritual persons (*. e. as previously defined, par- 
 sons, vicars, &c.) of lands and tenements, &c. to amortize them ; and of which 
 the said religious or spiritual persons take the profits, that they shall 
 cause them to be amortized by the licence of the king and of the lords or 
 else they shall sell and alien them to some other use on pain to be forfeited 
 and that from thenceforth no such purchase be made, so that such religious 
 
 * 29 Assize 17. t All corporations at common law. 
 
HISTORY OF THE LAWS OT MORTMAIN. 31 
 
 or spiritual persons take share of the profits ; and that the same statute ex^ 
 tend and be observed of all lands, &c. purchased to the use of guilds or fra- 
 ternities :* and because mayors and commons of cities or boroughs which 
 iia,ye perpetual corrbmonalty,^ and others which have offices perpetual, be as 
 perpetual as people of religion ; that they shall not purchase, &c.' nor others 
 be possessed to their use," &c. 
 
 From the terms of this statute, it is clear the legislature only- 
 designed to prevent alienation of land to corporations, since, 
 although their attention must have been called, by the cases 
 cited, to the practice of alienations to trustees, they only pro- 
 hibited it in cases where the parties would be trustees for cor- 
 porations; and it is equally obvious, that it was not religious 
 houses or ecclesiastical corporations, as such, which were aimed- 
 atj since this act applies the law to all corporations. In short 
 the concluding words of the statute show the scope of the aocient 
 law of mortmain to have been, not the inalienability of the land 
 (for these corporations could alienate their lands as easily as 
 private individuals), but the legal incapacity of the hody holding 
 it, for the performance of personal services, or the incurring of 
 personal liabilities. J 
 
 After all these mortmain laws were passed, it was recognized at 
 law, that a man might devise lands to the priests of a chantry or 
 a coIlege,§ so that there was no conveyance to a person or body 
 
 * Which were corporations at common law. — Sutton's case, 9 Coke, Reports. 
 
 t That is, " perpetual succession" as corporations. It is not said the land 
 is as perpetual, but the bodies politic holding it. 
 
 X First, as at this day, corporators cannot, as smcA, be taken on a capias. 
 See Comyn's Digest, " Corporation". 
 
 § If a man devise lands to the priests of a chantry (or a college) in the 
 church of A, and at the time of death there is no chantry or college, the 
 devise is void. — Tear Book, 9 Hen. VI, 24. 
 
 If a man seised of iand devisable in fee, devise it to A. A. for life, the re- 
 mainder to the church of St. Andrew's, Holborn, the remainder is good. — 
 Perkins, s. 609. 
 
 " In the reign of Henry IV, the king by letters patent gave Robert Ramsey 
 license, notwithstanding the statute of mortmain, to give 20 marks rent, 
 issuing out of a house, to a chaplain, to celebrate divine service at the altar 
 of the Blessed Mary, in the church of St. Magnus, every day, for the welfare 
 of the said Robert and his wife, etc.; to have and to hold to the said chaplain 
 and his successors, chaplains of the chantry aforesaid ( Tear Book, 2 Henry 
 VII, 13, a), for divine service at the altar aforesaid, in the church aforesaid, 
 
33 HISTORY or THE LAWS OF MOUTMAINT. 
 
 incorporate, and having perpetual successors. It is plain, there- 
 fore, that the scope of these laws was, not the perpetuity of the 
 purpose for which, but oit^ie person to whom, the property was 
 alienated. 
 
 If anything were wanting to prove that the scope and purview 
 of the ancient statutes of mortmain was purely to prevent the 
 loss of the feudal lords' services, it would be supplied in the 
 statute which is sometimes considered the last of the series — 
 the act of Henry "VIII, which appears to have been framed to 
 include not only all corporations, lay or spiritual, and all those 
 cases that could possibly come within the mischief and meaning 
 of the previous statutes on the subject, but also all those cases 
 which had been for centuries decided by the courts not to be 
 within their mischief or meaning. It recites, 
 
 " That by reason of feoffments, assurances, or trusts of lands and tene- 
 ments to the use of parish churches, chapels, churchwardens, guilds, fra- 
 ternities, companies, or brotherhoods, erected and made of devotion or by 
 common assent, without any corporation ;* and also by reason of feoffments 
 and other acts to the uses aforesaid, or to the uses and intents, to have obits 
 perpetual or a continual service of a priest for ever (or for years), founden of 
 the issues and profits of the lands or tenements, or that the feoffees or other 
 persons take the issues and profits thereof, and dispose or pay the same to 
 such uses, intents, or purposes, there groweth to the king and other lords 
 and subjects of the realm the same like losses and inconveniences as doth 
 and is in case where lands he aliened in mortmain."f 
 
 These last words clearly imply that the alienations contem- 
 plated in the act were not in mortmain, and it is obvious that 
 
 etc. (Lord Coke, in commenting upon this case, calls a chantry a corpora- 
 tion, Reports, part 10, p. 28.) And afterwards the said Ramsey, in 1407, 
 founded the said chantry, and ordained one Meadow to be the first chaplain, 
 to do the said divine services ; and granted to him the said rent to have, to 
 him and his successors, chaplains of the said chantry; and ordained that he 
 should present to the said chantry during his life, and after his decease the 
 parson and churchwardens of St. Magnus, and their successors." It was ob- 
 jected, that the king had given no incorporation, nor licence to erect a 
 chantry. But the grant was held good and sufficient. 
 
 * Gilda mercatoria were corporations at law : and this act evidently 
 refers to the guilds or fraternities of the Church, which were only in popular 
 estimation corporate bodies, and not in law. Nothing could more strongly 
 show that the mortmain laws only applied to corporations. 
 
 t 23 Henry Till, o. 10. 
 
HISTORY OF THE LAWS OF MORTMAIN. 33 
 
 they could not; as they were aUenations to persons or bodies 
 not corporate. This act then is a legislative recognition that 
 alienations of land, unless to corporations, are not within the 
 ancient mortmain laios. 
 
 The act, however, implies, that alienations of land to persons 
 or bodies not corporate are within the mischief of those mort- 
 main laws, if for the use of churches or chapels, or religious con- 
 fraternities, or for obits perpetual, or the continual service of a 
 priest; plainly pointing at the perpetuity of the purpose for 
 which, not of the persons to whom; the land is conveyed. This 
 is palpably at variance with the scope of the previous statutes, 
 and the tenor of the cases decided thereon; which point entirely 
 to the legal character oi'ihsi persons, not of ^e, purposes ; their 
 mischief being, the possession of land (for whatever purpose) by 
 persons or bodies corporate, who could not be called on to ren- 
 der certain feudal profits on events which could never occur to 
 them in a corporate capacity — as marriage or death. That 
 this act untruly states, that, from conveyances to persons or 
 bodies not corporate, "there groweth to the king and other 
 lords the like losses and inconveniences as where lands be aliened 
 in mortmain," is apparent from this fact — that such persons are in 
 all respects considered by the law as absolute owners of the land 
 for their own benefit and in their own right, the law taking no 
 cognizance of trusts; so that they of old would have had to pay 
 'escuage' or fines on marriage or on descent, as any other legal 
 possessors of land. That the "losses and inconveniences" to 
 be provided for by this act, were not at all "like" those met by 
 the ancient mortmain laws, may be gathered from the significant 
 fact that, in the very next year passed the act against appeals 
 to the Holy See, which commenced a series of acts ending in 
 entire separation therefrom, and a subversion of the Catholic 
 Church in this country. Then, for the first time, legislation 
 was directed against religious houses or Catholic houses as such ; 
 of which legislation, this, the last mortmain act, or rather, pre- 
 tended mortmain act, was the real commencement. 
 
 This act was only passed on the eve of the " Reformation," 
 which commenced with the suppression of religious houses ; and 
 during the whole period after the foundation of the Anglo- 
 Saxon monarchy till that era, no law had passed to prevent or 
 
34 niSTORY OF THE LAWS OF MORTMAIN. 
 
 restrain gifts of land for purposes of religion or charity^ and the 
 only restrictions imposed were for purely feudal reasons, related 
 only to corporate bodies, and only practically amounted to tte 
 imposition of a fine for tte alienation. Under this state of the 
 law, religious houses, hospitals, almshouses, and other institu- 
 tions, were by this time founded with ample endowments all 
 over this kingdom. And let it be observed, that in the vast 
 majority of instances, the alienations of land for these purposes, 
 were by gift and not by will. Ever since' the feudal system was 
 established, indeed,* the po^er of devising land did not exist, 
 and, although afterwards, the system of uses indirectly restored 
 the power in equity, it does not appear to have been much used 
 for the purpose of gifts to religious houses. And be it observed, 
 that whatever the state of the law on the subject, it had never 
 been aimed at religious bequests, and applied equally to all. Thus 
 when, in the time of Edward III, the introduction of " uses" - 
 virtually allowed devises of land, no .statute was introduced to 
 put a stop to this system (quite an evasion, if not an infraction 
 of the law), with regard to bequests for religious purposes. 
 When the statute of uses,t put an end to this evasion of the law 
 against devises, the power of devising land was for a short time 
 lost; however, hence arose so many inconveniences, that .in a 
 few years the act of willsj was made, whereby a man might de- 
 vise aU his land in some cases ; and by the statute of feudal 
 tenure,§ this was extended to all cases. There was then prac- 
 tically no restriction on the alienation of land for charitable 
 or religious purposes, from the foundation of the monarchy to 
 the Reformation, except upon the power of devise ; and in the 
 vast majority of cases, the religious houses were founded or en- 
 dowed by living gift and not by dying will and testament. 
 
 For these six or eight hundred years in the annals of this 
 country, the history of charity is the history of the Church. 
 Her rfeligious orders amply accomplished all the worts of mercy 
 — spiritual or corporeal j and thus in the reign of Edward I we 
 find it recited by act of parliameut : — 
 
 " That religious houses were founded by kings,] | prelates, and lords, to 
 
 * See ante. t 27 Henry VIII. X 32 Henry VIII. 
 
 § 24 Charles II. 11 35 Edward I. 
 
HISTORY Op the laws OF MORTMAIN. 35 
 
 the intent that clerks and laymen might be admitted into such houses ac- 
 cording to their ability, and that sick and feeble men might be maintained, 
 and hospitality, almsgiving, and other charitable deeds might be done ;" and 
 that " a very large portion of lands and tenements had been given to those 
 religious houses." 
 
 And in the reign of Henry Y, another statute recites :■ — 
 
 " That many hospitals were founded within the nation by the kings of the 
 realm and lords spiritual and temporal, to the honour of God and his glorious 
 Mother,^ in aid and merit of the souls of the founders, to which hospitals the 
 said founders have given a great part of their lands."* 
 
 Let it be recollected^ that the lands with which (as in the 
 cases thus cited) a charity was endowed, were inaUenable because 
 held in trust, and the Court of Chancery will not allow alien- 
 ation of land so held. But the lands granted to religious houses 
 were not in trust ; there was no legal declaration of trust ; there 
 was an absolute unconditional donation, and in the very de- 
 finition of the tenure by which they held, the great commenta- 
 tor, Littleton, says, it was created by an absolute unconditional 
 donation; and that, when a man granted land to a religious 
 house without any words of condition or qualification, the law 
 laid down, that the land was held by tenure, in free almes, of 
 which he speaks thus : — 
 
 " These words exclude the lord to have any earthly or temporal service, 
 and if they who hold these lands in free almes, will not, or fail to do such 
 divine service, the lord may not distrain <Aemt for not doing this, because 
 it is notpiit in certainty what services they ought to do. But the lord may 
 complain of this to their ordinary or visitor, praying him that he will lay 
 some punishment and correction for this, and provide that such negligence 
 be no more done, and the ordinary or visitor ought of right to do this."J 
 
 * 2 Henry V, c. 1. 
 
 t Distraint was originally seizure of the land, and the remedy of the law, 
 under the feudal system, for refusal of his services ; but ultimately it was 
 settled that the cattle or goods of the tenant were to be seized : and hence 
 the modern law of distress for rent, one of our few remaining vestiges of the 
 feudal system. (See Gilbert, on Distresses.) The meaning of the passage 
 cited in the text is, therefore, that the lord had no temporal remedy for the 
 breach of duty supposed. 
 
 X Littleton describes what their tenancy was: — "Tenancy in frankal- 
 moigne is where an abbot, or prior, or other man of religion or of holy 
 Church, holdeth of his lord mfree alms; and which was, when a man seised 
 of fee gave it to an abbot and his convent, or a prior, to have and hold to them 
 
 D 2 
 
36 HISTORY OF THE LAWS OF MORTMAIN. 
 
 The effect of this clearly is, that the religious houses, by rea- 
 son of the nature of their tenure, when land was given absolutely 
 to them, held it not on any legal trust, and that, though there 
 was a duty, it was ijurely spiritual and not at all temporal,* and 
 therefore gave no right of resort to a temporal tribunal. The 
 lands then not being in law held on trust, were, in law, held 
 absolutely as their own, and as such, could of course be alien- 
 ated, either by way of exchange, sale, or gift, as by any other 
 owners of land. Yet, as we have seen, the alienations of land in 
 trust to persons not corporate, were held allowable under the law 
 of mortmain, although the land was inalienable, because the 
 persons holding it were not, "perpetual"; whereas, the alien- 
 ation to religious houses, which were corporations, was held 
 within the laws of mortmain, although the land was alienable, 
 because the bodies holding it were corporate and had perpetual 
 succession. 
 
 That upon the whole, the religious houses faithfully dis- 
 charged the duties of their spiritual trusts, was formally and 
 solemnly acknowledged by the parliament of the very king who 
 suppressed them. For, in the act suppressing the smaller 
 houses, it is recited, " that in the great monasteries, religion is 
 right well kept and observed", f And even Protestant historians 
 acknowledge the immense moral and social benefits they con- 
 ferred upon the country.^ 
 
 aBcl their successors. They which held in frankalmoigne are bound of right 
 before God to make orisons, prayers, masses, and other divine services, for 
 the sov\ of their grantors, etc. And therefore they shall do no fealty to their 
 lord, because these words (frankalmoigne) exclude the lord to have any earthly 
 or temporal service." — Littleton's Tenures, section on Frankalmoigne. 
 
 Thus the mortmain only existed when the religious house was tenant of 
 the land. 
 
 * In the reign of Henry VI, the landowners of the parish of Whapplode, 
 in the fens of Lincolnshire, brought a suit against the Abbot of Croyland 
 for neglecting to keep up certain embankments, through a breach in which 
 the whole of the lands of the forest had been laid under water. They proved 
 that the abbots had, from time immemorial, kept up the embankments, and 
 thence inferred a prescriptive obligation upon them to do so. But the Court 
 held that there was no legal obligation upon the abbots, and that what they 
 had done was purely from charity ; for the safety of the country, and the 
 benefit of the people. — Hist. Croyland. 
 
 t Henry VIIL 
 
 X In 1712, the annual value of the lands which had belonged to the abbey 
 
HISTORY OF THli LAWS OF MORTMAIN. 37 
 
 As the very essence of the religious life was voluntary poverty 
 and sacrifice of property, it need scarcely be pointed out, that 
 
 of Glastonbury was ^500,000. The suin would build 1000 churches in a 
 year, at a cost of ^5,000 each ; or would endow as many with an income of 
 ^50 a year: and that its surplus income would have been so applied, may 
 be considered as certain, from the character and conduct of the old abbotts. 
 Thus in the fifteenth century, we fin J Richard Beere, abbott of Glastonbury, 
 rebuilt or repaired a vast number of churches in Somersetshire, the initials 
 of his name remaining to this day. Mr. MacCabe gives, in the notes to his 
 Catholic Histofy, interesting accounts, in many instances, of the present 
 value of monastic lauds : and in the Telegraph newspaper was lately pub- 
 lished the following specimens : — 
 
 Estate of Wiechelburn (of the Knights Hospitallers) 
 Estate of Woburn (a Cistercian abbey) 
 Estate of Bittlesden 
 
 Estate of Lanachebran (Co. Cornwall) - 
 Estate of Dunkeswell (Co. Devon) 
 Estate of Tavistock (Co. Devon) 
 Estate of BeauUeu (Co. Hants) 
 Estate of Tichfield (Co. Hants) 
 Estate of St. Elizabeth's College (Winchester) 
 Estate of Hagh (Co. Lincoln) 
 - Estate of Castle Hymel (Co. Northampton) 
 The Shaftesbury Estate (Co. Dorset) 
 
 J90,938 
 Let any one conceive the moral and social benefits which would have been 
 effected in these districts, by this sum being expended in buiLding and en- 
 dowing churches and chapels, schools and colleges, hospitals and almshouses ; 
 at the same time relieving the people from all poor rates or church rates. 
 
 Bishop Tanner says : " The monasteries were schools of learning, for every 
 convent had persons appointed for the purpose, and all the neighbours might 
 have their children taught grammar and music without any expense. Then 
 they were in effect great hospitals, and relieved many poor people every day ; 
 and were houses of entertainment for travellers. They were also of consider- 
 able advantage to the places where they had then sites and estates, by free- 
 ing them from the forest laws, and hy letting them lands at easy rates." And 
 a more recent writer, Cobbett, than whom none could be a better authority 
 on the material aspect of the question, or on anything relating to the 
 interests of agriculture, says {History of Reformation) : — 
 
 " One of the greatest advantages attending the monasteries was, that they 
 of necessity caused the revenues of a large part of the lands of the country 
 to be spent on the spot whence t^ose revenues arose. The hospitals, and all 
 
 Present Value. 
 
 £. s. d. 
 
 4,829 16 8 
 
 - 8,613 19 2 
 
 - 2,842 
 
 5 
 
 Ol 
 
 4,300 
 
 
 
 
 
 - 5,971 
 
 16 
 
 8 
 
 - 48,045 
 8,619 
 
 12 
 19 
 
 6 
 
 2 
 
 5,919 
 
 19 
 
 2 
 
 - 2,267 
 2,000 
 
 6 
 
 
 8 
 
 
 1,256 
 26,581 
 
 
 5 
 
 
 
 
38 HISTORY OF THE LAWS OF MORTMAIN. 
 
 in the exact degree in which it was cherished, the principle of 
 self-sacrifice, which was considered the essence of charity, led to 
 
 the other establishments of the kind, had the same tendency. There were 
 of the whole, great and small, not less on an average than fifty in each 
 county, so that the revenues of the land diffused themselves in great part 
 immediately among the people at large. What must have been the effect of 
 twenty such monasteries, in every county, expending a great part of their 
 incomes on the spot? Somebody must own the lands; and the question is, 
 whether it be best for them to be owned by those who constantly live, and 
 must live, in the country, and in the midst of their estates, or by those who 
 frequently will, and do, live at a great distance from their lands, and draw 
 away the revenues of them to be spent elsewhere. The lay landowner and 
 his family spend more of their revenues in a way not useful to the people 
 than the monasteries possibly ^could. But besides this, besides the hospi- 
 tality and charity of the monasteries, and besides, moreover, the lien, the 
 legal lien, which the main body of the people had in many cases to a share, 
 directly or indirectly, in the revenues of the monasteries, we are to look at 
 the monks and nuns in the very important capacity of landlords and land- 
 ladies. All historians, however, Protestant or malignant, agree that; they 
 were ' easy' landlords ; that they let their lands at low rents, and on leases 
 of long terms of years, so that, says even Hume, the farmers regarded them- 
 selves as a species of proprietors, always taking good care to renew their 
 leases before they expired. And was there no good in a class of landlords of 
 this sort ? Did they not necessarily create a good many men of property ? 
 Did they not cause a class of yoemen — ^real yeomen — to subsist, indepen- 
 dent of the aristocracy 1 And was not this class destroyed at the Reform- 
 ation ; which made the farmers rack renters and absolute dependants, as we 
 see them to this day 1 Monasteries could possess no private property, could 
 save no money, could bequeath nothing. They had a life interest in their 
 estates, and no more. They levied, received, and expended in common. 
 Historians hardly need have told us that they were ' easy landlords'. 
 
 " Then look at the monasteries, as causing in some of the most important 
 of human affairs that fixedness which is so much the friend of rectitude and 
 morals, and which so powerfully conduces to prosperity, public and private. 
 The monastery was a proprietor that never died ; its tenantry had to do with 
 a deathless landlord ; its lands and tenants were liable to none of many un- 
 certainties that other tenants were ; its oaks had never to tremble at the axe 
 of the squandering heir : its villagers had all been born and bred up under 
 its eye and care. Then the monastery was the centre of a circle in the 
 country, naturally drawing to it all that were in need of relief advice and 
 protection. The monasteries built for posterity. The never dying nature of 
 their institutions set" aside in all their undertakings every calculation as to 
 time and age. Whether they built or planted, they set the generous ex- 
 ample of proWding for the pleasure and honour of generations unborn. They 
 executed everything iu the very best manner: their gardens, fish-ponds 
 
HISTORY OF THE LAWS OF MORTMAIN. 39 
 
 the giving up of property while men lived, not merely the leaving 
 of it when they died. And, in point of fact, all the principles 
 of the religion precluded any unseemly solicitude, or still more 
 rapacity for property.* 
 
 The result of the Jaw, as it stood at the opening of the Re- 
 formation, was, that land could not be granted to religious 
 houses, or other corporate bodies, without the consent of the 
 crown,t and of course, where they had acquired enough lands, 
 it was in the power of the crown to prevent any further accumu- 
 lation of land in their hands. At the same time let it be clearly 
 remarked, that no objection had been taken before the era of 
 the Reformation to the holding of any quantity of land by per- 
 sons not incorporated, in trust for pious uses or other permanent 
 
 farms — in all, ia the whole of their economy, they set an example tending 
 to make the country beautiful, and to make it an object of pride with the 
 people, and to make the nation truly and permanently great." 
 
 * Generally after the sermons of St. Francis, the people used to build a 
 convent for his priors on their ground. But we read that when one left his 
 all to follow the saint, he obliged him to give the property to his relations. 
 The rule of the order was thus laid down : — " No one who is the support of 
 his friends can be received into it. If the parents of a friar fall into neces- 
 sity, he is to succour them : if, however, he refused to leave the order to work 
 for them, he must still do so, because he is more obliged to the divine and 
 natural law, than to his vows. The friars could not, directly or indirectly, 
 induce a novice to leave his goods to the poor. No one having debts could 
 be received into the order ; and if any should be so received, the order were 
 obliged to' pay." {Expos. Litt. de la Rigle des FF. Mineurs, c. ii.) The 
 rule of the Friars Minors required, that if a sum were left to any one on 
 condition of his paying annually a part to one of their convents, they could 
 not claim the payment ; and if they should say to the heir that, if given as 
 alms, they would accept it, they could not receive it. — Recherches de la 
 France, ui, 19 ; cited in Mores Catholici. 
 
 + " The effect of the statutes was", says Sir F. Palgrave, " that upon any 
 gift or devise of land being made to a corporation, the legal estate vested in 
 the corporation ; then the statutes authorized the crown to seize the lands 
 which had been so convened. The conveyjfcoe operated ; and, until some 
 step was taken by the crown, the land was in the corporation. When the 
 crown took that step, it became vested in the crown ; the crown then having 
 the right of seizing the land, it was considered that the crown had the right 
 to waive the claim to seize, or, in other words, to grant a licence to the cor- 
 poration to hold the land ; so that, during the whole of this period, it was 
 the practice that, if any land was conveyed to a corporation, the corporation 
 might hold it in mortmain, if they could get a licence from the crown." 
 
40 HISTORY OP THE LAWS OF MORTMAIN. 
 
 purposes, although the practice, as is found by the cases cited, 
 had long been prevalent of giving land to be so held in trust ; 
 and this, indeed, was the common mode in which chantries,* or 
 endowments for masses for the dead, were ordinarily established, 
 as those cases amply illustrate. 
 
 The Reformation commenced with spoliation, and the statutes 
 of suppression were aimed equally at the "chantries" and the 
 religious houses. In the reign of Henry VIII, passed the first 
 act of " chantries ",t which recited : — 
 
 " That there have been divers chapels, chantries, hospitals, fraternities, 
 brotherhoods, guilds, and stipendiary priests, having perpetuity for ever, 
 which by licence, &c. have been incorporated, founded, established, and 
 made by divers names and corporations to have a perpetual continuance, for 
 ever." 
 
 And enacted, 
 
 " That all chapels, chantries, &c., and all the lands, &c., appertaining or 
 assigned to such chantries, &e. or stipendiary priests, be adjudged and 
 deemed in the possession of the king." 
 
 And in the reign of Edward VI, passed another act of chant- 
 ries, J by which it was enacted : — 
 
 " That-all chapels and chantries in esse, and all lands, tenements, rents, 
 and other hereditaments and things, limited, appointed, or assigned,^ to the 
 Jmding of any priest to have continuance for ever, -whereby any priest was 
 
 * Shakespeare represents Henry V speaking thus of the foundations of 
 the Carthusian monasteries of Bethlehem and Sion, which he had founded 
 for the fault of his father in usurping the crown : — 
 " Five hundred poor I have in yearly pay. 
 Who twice a day their withered hands hold up 
 Towards heaven, to pardon blood : and I have built 
 Two chantries, where the sad and solemn priests 
 Sing still for Richard's soul. More will I do ; 
 Though all that I can do is nothing worth. 
 Since that my penitence comes after all, 
 Imploring pardon." (Scrary F, act iv,) 
 It will be observed, the penitence of the king is represented by the poet as 
 proved by gifts in his lifetime, and not at his death. The modem notion of 
 Catholic piety, that it delights in death-bed charity, had not been invented 
 at that time ; or the recoUectioas of Catholicity were too recent to permit so 
 mendacious a misrepresentation the least chance of credit. 
 
 t 37 Henry VIII, c. 4, a.d. 1545. % 1 Edward VI, o. 1547. 
 
 § That is, in trust 
 
HISTOKY OF THE LAWS OF MOttTMAINT. 41 
 
 sustained or found, &c., and all rents or profits paid or employed towards the 
 finding or support of any stipendiary priest intended by any act or writing 
 to have continuance for ever, shall be adjudged and deemed the possession of 
 the king. And that where any lands, &c. have been given for the mainte- 
 nance or finding of a priest for term of years yet continuing, and any priest 
 hath been maintained and found within the same or with the revenues thereof, 
 the king shall have and enjoy the same, &c.* And that the king shall have 
 all lands, &c. at any time heretofore given, to be employed wholly to the find- 
 ing or maintenance of any anniversary or obitj, or such other like intent or 
 purpose, or of any light or lamp in any church or chapel to have continuance 
 
 * These statutes gave the crown power to establish other charities, not 
 superstitious: but, says Eden, the rapacity of the courtiers rendered this im- 
 practicable. And indeed there was little chance of much being done in this 
 way, when even hospitals or alms-houses, for the suppression of which even the 
 sacrilegious rapacity of the reformers could devise no decent pretext, have 
 hardly fared better than if they had been comprised in the shameless decrees 
 of spoliation. How Catholic charities have fared in modern times^may be illus- 
 trated by a case'reported so recently as 1849. In the twelfth century a charity 
 was founded, called " the Master, Brethren and Sisters of the Hospital of St. 
 John the Baptist". In the time of Charles II the mastership and lands were 
 granted to the corporation of Chester, who assumed the title of " Masters of 
 the Hospital". And an information having been filed against the corpora- 
 tion, to ascertain the lands, and have a scheme for the management of the 
 charity, the court made a decree; some years after which, the corporation 
 took a technical objection as to the hospital being a corporate body, which, 
 however, the court disregarded, adhering to the former decision. {Att. Gen. 
 X. Corp. of Chester, 1 HaU and T. 46.) In another case, charity lands 
 granted in the reign of Henry VIII, and now worth ^7,000 a-year, only 
 produced to the charity ,£1,200! {Att. Gen. v. Wyggerston Hospital, 12 Bea- 
 van's Reports, 113.) In another case, it appeared that in 1699, property of 
 a charity was leased by the trustees for a thousand years, at £8 a-year ! The 
 case was last year set aside as " improvident", the Court of Chancery phrase 
 for such transactions on the part of trustees. {Att. v. Pilgrim, 14 Jurist, 
 1053.) A singular case recently occurred in relation to this act. Some 
 chantry lands were incorporated by the crown, and granted to Morpeth 
 School. In 1685, a lease for five hundred years was granted to the Thornton 
 family. In 1710, an information was filed to recover them for the charity ; 
 and a commission was issued to ascertain the identity of the lands, which the 
 commissioners reported was impossible ; and a compromise ensued, one con- 
 dition of which was the obtaining of an act of parliament confirming it, 
 which had never been obtained. An information was filed in 1833, to carry 
 on the proceedings commenced in 1710, the conditions of the compromise 
 not having been performed. And the vice-chancellor held it sustainable, 
 and directed an inquiry to ascertain the ancient chantry lands confiscated 
 by Edward VI. {Att. Gen. v. Trevelyan, 16 Law for Cha. 521.) 
 
42 HISTORY OF THE LAWS OF MORTMAIN. 
 
 for ever, and all monies given to have contiauance for ever, and employed hy 
 any corporation to the finding or support of any priest or any anniversary 
 or obit, &c. And that the commissioners under the act shall have authority 
 to assign lands of such chantries, &c. to continue in mccessionfor a preacher 
 or schoolmaster for ever; or to such stipendiary priests as they shall think 
 necessary ; or to make assignments of moneys to be paid to poor people for 
 ever." 
 
 It is conceived that these acts conclusively shew that there 
 was previously no law against land being vested in persons in 
 an individual and unincorporate capacity, in trust of perpetualty 
 for religious purposes, although the land thus became unalien- 
 able. For if this were sOj the chantry acts would have been 
 useless, and chantries were common after the mortmain law had 
 been established, as already has been seen. It appears plainly 
 therefore, that the policy of the mortmain acts was not at all to 
 prevent such vesting of lands in trusts in perpetuity, for they 
 apply only to peculiar Catholic trusts, and expressly authorize 
 the continuance of lands on other trusts in succession for ever. 
 
 The paltry pretence about the lands so vested being inalien- 
 able, had not yet occurred even to the rapacious ingenuity of 
 the spoliators and suppressors of religious houses ; and their 
 pretence was "superstition". 
 
 This is remarkably illustrated in the "leading case" on the 
 subject; which is extremely interesting as shewing what the 
 law really allowed of, before the statutes of superstitious uses, 
 not only under the law of mortmain, but before the statute of 
 wills. In that case, decided in 1602, in the reign of Elizabeth, 
 it appears from the record : — * 
 
 " That on the 5th June, 1431, in the 9th year of King Henry VI, one J. 
 • Barton was seised of certain lands, &c. and enfeoffed W. Brampton to hold 
 to him and his heirs to the use of the said J. Barton and his heirs. That 
 on the same day J. Barton made his will in this manner : — ' I give and be- 
 queath my soul to God and my Omnipotent Creator and Saviour, and to the 
 Blessed Mary, the Virgin his Mother, and to all the saints ; and my body to 
 be buried in the church of the Blessed Peter the apostle, &c. and I bequeath 
 to John Barton, the younger, my brother, all my tenements for life on the 
 conditions that he during his life find a chaplain to celebrate (mass) for my 
 soul, and the souls of my father, mother, brother, sisters, and benefactors 
 and friends, and of all the faithful deceased, at the altar of St. James in the 
 aforesaid church ; and that my brother John, yearly during his life pay the 
 
 * Adams and Lambert's case, Coke's Reports, part iv. 
 
HISTORY OF THE LAWS OF MORTMAIN. 43 
 
 said chaplain ten marks out of the rents of the said tenements ; and the said 
 chaplain and his successors be chosen by the master and brethren of the 
 House of St. Thomas, &c. And that all the said tenements and rents, after 
 the decease of my brother John, remain to Margaret and Isabella, my sisters, 
 for the term of their lives, and the life of the longer liver, on condition that 
 they, during their lives, perform and observe all the charges before limited ; 
 and after their deaths, that the said tenements remain to William Fowler, to 
 hold to him and his heirs for ever, on condition that he and his heirs per- 
 form the said charges. And in default of heirs, that the said tenements re- 
 main to the master of the Hospital of St. Bartholomew, to hold to them and 
 their successors for forty years, on condition, &c. (as aforesaid).' The testator 
 afterwards died, the said W. Brampton leing seised of the lands to the uses in 
 the will expressed* The said John Barton, the younger, after the death of 
 the testator, entered into the lands and applied the rents to those uses. 
 After his death, Brampton being still seised, the sisters entered into posses- 
 sion and so applied the rents during their lives. Then Fowler took posses- 
 sion, and his heirs applied the rents to those uses until the statute of uses in 
 the reign of Henry VIII transferred their 'use' into a legal title to the^o«- 
 session of the land, of which they then became seised to the uses of the willt 
 until the act of chantries." 
 
 And this policy the legislature pursued iu subsequent acts 
 passed after the period of the Reformation, the first time in the 
 history of this country in which death-bed dispositions for reli- 
 gious or charitable uses were encouraged. 
 
 It is a very remarkable fact thatj immediately after these sta- 
 tutes of confiscation, an act of parliament was passed J removing 
 the feudal restrictions upon devises of land, and allowing so 
 much to be devised as should leave a " reasonable part" for the 
 heir. And, although this did not affect the mortmain law, 
 (which continued to apply to such charities as hospitals, &c., 
 which had perpetual succession by royal charter), yet, as those 
 
 * Which were to let certain persons, in their personal capacity, receive 
 the rents for religious purposes for ever : so that there was a perpetual trust, 
 but no mortmain, because the last statute of mortmain (Richard II) only 
 prohibited alienations in trust for corporations : and here the trustee was 
 not so, for the chaplain anS his successors, but for the persons viho were to 
 maintain them. Thus, then, this case clearly shows that inalienability, or 
 perpetuity of trust, was not within the mischief of the mortmain laws. 
 
 t The feoffee and his heirs were seised in trust for the " chantry", i.e. the 
 chaplain and his successors ; and thus the mischief of mortmain arose. But 
 it will be observed that no allusion is made to it in the case : the reason is 
 obvious— -the law was already obsolete, feudal seisures being at an end. 
 
 X 32 Henry VIII, 5. 
 
44 HISTOEY OF THE LAWS OF MORTMAIN. 
 
 laws did not prevent the holding of land by individuals unincor- 
 porated, in trust for religious or charitable purposes, it cannot 
 but be seen, that as no particular political reasons had occurred 
 at that period for a relaxation of the feudal restrictions, &c. 
 (which, in other respects, remained in existence until the reign 
 of Charles II), the object of this act was to allow persons who 
 had shared in the spoliation of the religious houses and chant- 
 ries, and who had not courage to make restitution in their lives, 
 to do so as far as the law allowed on their death-beds.* 
 
 Of course, when religious houses were suppressed, and when, 
 not long afterwards, the religion from which they arose was like- 
 wise suppressed, the laws of mortmain ceased to have any prac- 
 tical application, so far as their original scope was concerned^ 
 but they continued to apply in cases (comparatively rare) of 
 hospitals incorporated, and also as to ecclesiastical corporations 
 of the secular clergy (corporations aggregate or sole), in the es- 
 tablished Church ; and lastly, as to municipal corporations, for 
 let it always be remembered, that these ancient laws related only 
 to bodies corporate. Not only, however, is the learning relat- 
 ing to these laws of mortmain still directly and practically 
 useful as respects corporations, civil and spiritual, yet subsisting, 
 but the history of these laws is of great importance for the pur- 
 pose of dissipating the prejudices which, when the country had 
 become quite Protestant, were based upon a systematic misrepre- 
 sentation of these laws, and of the principles and policy upon 
 which they were founded. Porgettiug altogether their feudal 
 origin, and their application purely to corporate bodies, it has 
 been the modern notion of them, that they originated in a per- 
 suasion of the injurious effects of allowing land to be in posses- 
 sion of the Church or of her religious orders, in respect to the 
 mode of management, or the interests of trade, or the morally 
 
 * The statute of wills gave a general power of devising, but au explana- 
 tory act excepts bodies politic and corporations. The object of the latter 
 act is obvious ; it was passed after the dissolution of the religious houses, 
 and was designed to prevent their property being bequeathed back to them 
 by parties who had profited by the plunder, and whose consciences might 
 perchance prick them at the approach of death. From that time, corpora- 
 tion could not, even with license, take lands by devise (except by custom 
 which prevailed in several places, particularly in London), until the Cha- 
 ritable Trusts Act of Elizabeth. {Evidence of Mr. B-wrge, 1844.) 
 
HISTORY or THE LAWS OP MORTMAIN. 45 
 
 mischievous influence of landed property in the hands of eccle- 
 siastics, or as to the way in which property was acquired by the 
 Church. It suffices to expose the fallacy of these ideas, to ob- 
 serve that, not only they had no existence in Catholic times, but 
 that their origin cannot be traced even to the era of the Reform- 
 ation, but to a time considerably subsequent to that event — to 
 an age, when not only Catholicism almost had ceased to exist in, 
 but when irreligion had begun to prevail in the country, and 
 impiety was substituted for charity. Then, and not till then, 
 was the notion promulgated, that it was a mischievous thing to 
 allow land to be dedicated permanently to religious purposes; 
 and then, and not till then, those misrepresentations of the 
 mortmain laws commence which made them out to have been 
 resorted to by the laity as a protection against " the rapacity of 
 the clergy ",* or as a security against certain ill effects of the 
 then acquisition of land ; ideas which had no existence either 
 before or at the time of the Reformation, nor until long after- 
 wards; so far from it, that, as we have seen, land was constantly, 
 from the passing of the first mortmain laws until the suppres- 
 sion of all such endowments as "superstitious", held in trust 
 for permanent religious purposes by persons not incorporate, 
 and this was recognized as legal by the courts of law, and allowed 
 by the legislature from the time of Magna Charta until the reign 
 of Henry VIII; and when the system was suppressed, and these 
 endowments confiscated, it was not at all upon the pretence in 
 modem times put forth, but upon a very different pretext — that 
 of "superstition". Not a trace can be found in our legislation 
 prior to the Reformation, (nor, as we are now about to prove, 
 prior to the Revolution,) of the modern prejudices about the 
 rapacity of the Catholic clergy or the peril of permitting death- 
 bed dispositions for pious purposes, which have been made the 
 foundation for modern legislation, and which, if they ever had 
 any foundation in facts, it must have been discovered not in 
 Catholic, but in Protestant times. 
 
 * See the evidence of Mr. Burge in 1844 : — " It has been represented er- 
 roneously, that the statutes of mortmain were passed for the purpose of pro- 
 tecting the people of England against the rapacity of the clergy. I have 
 found no statements in old books which would lead me to suppose that the 
 popular opinion took that line.'' 
 
46 HISTORY OF THE LAWS OP MORTMAIN. 
 
 At the Reformation, a new era in the history of charity com- 
 menced, not merely in the proscription of the Catholic charities, 
 but in the character imparted to, and encouraged in Protestant 
 charities. Hitherto there had been, on the one hand, no pecu- 
 liar restriction imposed upon alienations for jpeligious purposes 
 as such, but rather encouragement had been extended to them ; 
 and on the other hand, these alienations had usually been by 
 grants from the living, nOt by bequests from the dying. In an 
 age, however, in which the religious orders had been plundered 
 and suppression made the means of spoliation, it would not be 
 expected that the spirit in which they had been founded would 
 exist. Charity could not continue in a country which had lost 
 the faith, and accordingly we find the legislature speedily sensi- 
 ble, not only of the mischief occasioned by the suppression of 
 the religious houses, but of the difficulty of repairing it.* Not 
 only did they discover the loss of Catholic charity, but the weak- 
 ness of Protestant charity. How could it be otherwise ? The 
 spirit which had founded the religious houses was one of self- 
 
 * lambard says : — " In ancient times, the greatest personages held monks, 
 friars, and nuns in such veneration, that they thought no city like to flourish, 
 no house likely to have long continuance, no castle sufficiently defended, 
 where was not an abbey, priory, or nunnery, near adjoining or within the 
 walls." (Wever on Funeral Monuments, 281.) And Robert Fabian, in his 
 Commendation of London, says, writing in the reign of Henry VII, that 
 " Christ hath ever preserved that city by means of divine service : that in 
 continual wyse is kept in devout guyse within the maze of it. As houses 
 of religion in divers places of the town, whyche in great devotion ben ever 
 occupyed ; when one hath done another begyn, so that of prayer they never 
 blyn, such order is these houses within which all virtue allyed." Weever 
 says, speaking of the suppression of the smaller monasteries : — " It was a 
 pitiful thing to hear the lamentation that the people in the country made 
 for them, for there was great hospitality kept among them." {lb. 105.) All 
 monasteries being thus suppressed, it followed that, under a fair pretence of 
 rooting out aU superstition, all chantries, colleges, and hospitals, were like- 
 wise by act of parliament left to the disposal of the king. And all these 
 monuments of our forefathers' piety and devotion to the honour of Gr6d, the 
 propagation of Christian faith and good learning, and for the relief and 
 maiatenance of the poor and impotent, all these were, shortly after, every- 
 where pulled down, and their revenues sold and made away ; and those goods 
 and riches which the Christian piety of our English nation had consecrated 
 to God, since they first professed Christianity, were dispersed and profaned." 
 (Weever's Discourse of Funeral Monuments.) 
 
HISTORY OF THE LAWS OF MOUTMAIN. 47 
 
 sacrifice ; and how could that spirit exist in an age of spoliation 
 and sacrilege ? or how could persons be expected to renew the 
 foundations of charitable institutions, when the miserable fate 
 of such as had existed for centuries had been seen? In 1572, 
 an act of parliament recited : — 
 
 " That divers well-disposed and charitable persons have given lands to the 
 relief and sustentation of the poor in hospitals, and it is.hoped tl^at many 
 more will hereafter likewise charitably give, and as many of such gifts «?■« 
 likdy to he made ly last will and testament of the givers, at which time, for 
 want of counsel, it may happen that the right name of the corporation shall 
 not be truly named" — ■ 
 
 And then it enacts, that such wills shall be good. So that 
 here was actually a statute passed to facilitate and confirm de- 
 vises of lands for charitable purposes made in extremis, and de- 
 claring that, by such devises, "it is hoped" that those who are 
 charitably disposed will endeavour to repair the cruel mischief 
 caused through the ruin of the religious houses, by erecting 
 " hospitals for the poor." In 1597, another act passed,* recit- 
 ing: — " That the said good law has not taken such effect as was 
 intended"; and then it goes on to provide, that, 
 
 " It shall be lawful to give or bequeath lands, &c. for hospitals, maisons de 
 Dieu, &c. and to make any such head and ipembers as may be desirable ; and 
 the same shall be incorporated notwithstanding the statutes of mortmain." 
 
 And the actf to redress the misemployment of lands given, 
 appointed, and assigned for charitable uses, not only dispensed 
 with the statutes of mortmain altogether in favour of charitable 
 uses, but also empowered commissioners of charitable uses to 
 give effect to any dispositions (testamentary or otherwise) in 
 favour of such uses, even though, at mortmain law, such disposi- 
 tion could not, for other purposes, take effect. And, under this 
 law. Bacon and other chancellors of that age held, that a will 
 void in law was nevertheless good as an "appointment" for cha- 
 ritable uses. Hence it appears plainly, that the expectation of 
 the legislature at this period was principally from bequests of 
 the dying, not by gifts of the living; and their intention was 
 to favour and precipitate such bequests as much as possible, 
 finding that how much the nation was in need of charity, and 
 
 * 39 Elizabeth, c. 6. t 43 Elizabeth, c. 4. 
 
48 HISTOKY OF THE LAWS OF MORTMAIN. 
 
 that the other kind of charity — that of self-sacrifice, was become 
 rather rarer than in the ages of faith. 
 
 The pages of our modern reports present innumerable in- 
 stances of the charity which was exercised within the scope of 
 this statutfe, mostly by way of last will. In 1597, a person 
 founded a hospital for bedesmen, still existing.* So in 1596, we 
 find an almshouse appointed, which, within late years, was the 
 subject* of a decision in Chancery if and so of another hospital, 
 founded in the same year, in another town — Newcastle, f So of 
 a hospital, founded at Bristol in 1586, for the education of poor 
 infants and orphans. § So of a grammar school founded at 
 Northampton in 1556. || So a charity, founded in 1540, for 
 marriage of poor maidens.^ So of a grammar school founded 
 many years before that at Manchester.** So a school founded 
 at Highgate, temp. Queen Elizabeth.ff So of Tiverton grain- 
 mar school, founded 1599. $| Most of the City companies are 
 trustees of lands granted for charitable purposes in or about the 
 time of Elizabeth ; as the Drapers' Company,§§ the Ironmongers' 
 Company,|||| the Grocers' Company.^^ 
 
 In 1599, B. Blundell, hy will, founded a free grammar 
 school in Tiverton, to this day existing.*** In 1553 (reign of 
 Philip and Mary), the crown established a grammar school at 
 Boston in compensation for lands " of certain guilds lately dis- 
 solved and seized by the crown, to the great grief of the Catholic 
 
 * Simpson v. Wilkinson, 14 Law Journal, N. S., C. P. 49. 
 
 t Davis V. Waddington, 14 Law Journal, N. S., C. P. 49. 
 
 % Attorney-Qeneral v. Newcastle Corporation, 5 Beaver's Reports, 307. 
 
 § Case of hospitals of Queen Elizabeth at Bristol, 12 Law Journal, N. S., 
 418 ; 7 Jurist, 761. 
 
 II Attorney-Oeneral v. Grocers' Company, 12 Law Journal, N. S. 195. 
 
 IT Attorney-Oeneral v. Drapers' Company, 12 Law Journal, N. S., 421. 
 
 ** Attorney-Oeneral v. Earl of Stamford, 12 Law Journal, N. S., 297. 
 
 +t Attorney-Oeneral v. Wardens of Highgate School, in Equity. B. 166. 
 
 XX Attorney-Oeneral v. Earl of Devon, 10 Jurist, 1067. 
 
 §§ Attorney-Oeneral v. Drapers' Company, 6 Beaver, 382. 
 
 WW Attorney-Oeneral Y. Ironmongers' Company, 10 Clarke and Funesty's 
 Reports. 
 
 ITT Attorney-Oeneral v. Orocers' Company, Law Journal N. S. 195 
 
 *** Attorney-Oeneral v. Earl of Devon, Simons' Reports ; 10 Jurist 
 1067 ; 16 Law Journal, C. P. 34. ' 
 
HISTORY OF THE LAWS 01' MORTMAIN. 49 
 
 inhabitants.* In the reign of Henry VII, a hospital was founded 
 at Stamford.f 
 
 Of course, it was well to encourage the charity of the dying, 
 when the charity of the living was so -slack, and, no doubt, the 
 charity of the dying might be meritorious (on the part of such 
 as would give when living), and certainly beneficial to the neces- 
 sitous. It is probable, however, that many of the bequests then 
 made to charitable purposes were rather in the nature of restitu- 
 tion, and the result of tardy repentance on the part of those who 
 had shared the plunder of Church lands. One of the most re- 
 markable endowments of that age was that of the Charterhouse, 
 of which Coke thus speaks (it will be observed, that it was 
 principally by way of gift : the spirit of Catholic charity did not 
 die out of the land all at once): — 
 
 " The first gift by Sutton of lordships, manors, lands, and tenements, to 
 continue for ever for the maintenance thereof, doth amount to the clear 
 yearly value of ^3,500, and within these few years will be increased to about 
 the yearly value of £5,000. And besides all this, Sutton left to descend to 
 the plaintilF (a man of mean quality), the manor, consisting of a fine aneient 
 house, two parks, and large demesnes, of the yearly value of £300. The 
 large revenues of this famous hospital are to be employed principally for 
 four purposes, including the erection of a free school ; and there shall be 
 for ever maintained a grave and learned divine for the instruction of all 
 within the hospital, by preaching of God's Holy Word, for the due celebra- 
 tion of divine service and the holy sacraments, and the catechizing of youth 
 on the principles of true religion ; for the accomplishment of which, and 
 other godly and charitable uses, the said founder had left also a very great 
 and large stock of money to his executors." 
 
 Lord Coke says: — 
 
 " I have reported this case more at large for the confirmation of incorpo- 
 tions founded for works of piety and charity in time past, and for the better 
 instruction how they shall be founded hereafter." 
 
 And he declares : — 
 
 " I dare affirm it for the honour of our religion, that more of such good 
 works of piety and charity have been founded within this realm, since the 
 reign of our late queen, BHzabeth, than in many ages before." 
 
 Lord Coke, therefore, conceived it " for the honour of religion," 
 
 * Att. Gen. v. Boston, De Gez and Smale, 519. 
 
 t Am. Oen. V. Browne's Hospital, 1 7 Simon's Reports, 137. 
 
 X See case of Sutton's Hospital, Coke's Reports, part x. 
 
50 HISTORY OV THE LAWS OF MORTMAIN. 
 
 that works of charity, founded on incorporations and endowed 
 largely with land, should be encouraged and augmented.* 
 
 So we read, at the same period, even of the puritan archbishop 
 (Abbott), less fit for the world than he had heen, resolved, while 
 he had still strength, to enter upon a good and great design (the 
 erecting of a hospital at Guildford, his native town); and, by 
 deed 1629, he made a partial endowment: and, by his willl632, 
 he recited, that he had finished the main building, and proposed to 
 add thereto what might be necessary for decency or ornament, 
 and then makes further endowments. f 
 
 The act of Elizabeth, commonly called the statute of Charita- 
 ble Uses, was unquestionably framed and construed as much in 
 favour of charity as any measure under the Protestant system 
 of legislature possibly could be. The Protestant idea of charity, 
 however, as embodied in this act, was somewhat narrow and 
 material in its nature ; for it excluded everything religious, ex- 
 cept perhaps the repairs of churches. Its author and expositor. 
 Sir F. Moore, said : — 
 
 "But a gift of lands to maintain a chaplain or minister, to celebrate 
 divine service, is not within the letter or meaning of the statute ; for it was 
 of purpose omitted in the penning of the act, lest the gifts intended to he em- 
 ployed upon purposes of charity might, in change of times {contrary to the 
 Tninds of the givers), he confiscated into the hing''s treasury. For religion be- 
 ing variable, according to the pleasure of succeeding princes, that which at 
 one time is held orthodox, may, at another, be counted superstitious, and 
 then such land is confiscated, as appeals by the statutes of charities, 1 Ed- 
 ward VI, c. 14."| 
 
 * " Sutton's ease, reported by Coke, is most instructive. It testifies the joy 
 which Coke felt in overturning the technicalities by which that gift was 
 attempted to be set aside. He considered that charitable donations were as 
 beneficial to the commonwealth, as his successors have thought them iniu- 
 rious. Coke's feelings and language form a singular contrast with the 
 opinions of Lord Hardwicke, a great judge, but one whose narrowed, nay 
 higoted views, have caused so much mischief to charitable cases. From the 
 accession of Elizabeth until the accession of George II, the feelins of the 
 legislature, the judges, and the country, was in favour of charitable bequests. 
 The jealousy which now exists, did not then exist. During that period a 
 large proportion of our most useful institutions were founded; but founded 
 mostly by will." — Evidence of Sir F. Palgrave, Report 1844. 
 
 t See Sir F. Palgrave's evidence. 
 
 X Duke on Charities. 
 
HISTORY OF THE LAWS OF SIORTMAIN. 51 
 
 A more severe sarcasm upon the said statute of charities, or 
 on the Royal supremacy, under which "religion was variable 
 according to the pleasure of succeeding princes," could scarcely 
 be conceived. But, unfortunately, the judges who construed 
 the act, being sworn to uphold that doctrine, realized, without 
 any remorse, in respect to the religion then called " supersti- 
 tious," the very result here deprecated by its author and expo- 
 sitor. For we read, in the reign of James I : — 
 
 " A recusant (i. e. a Catholic) made a feoffment of certain land to divers 
 others, upon hope that they would employ the profits of the land to the use 
 of grave scholars in Oxford or Cambridge, or elsewhere (being such as studied 
 divinity, and took holy orders), according to the discretion of the feoffees and 
 the intent of the feoffor ; and, because the party was a recusant, and his in- 
 tent by the words might appear to he that the mi'semployment should be upon 
 poor popish priests, for the word ' elsewhere,' in its meaning is some foreign 
 university, and the ' holy orders ' they intend are popish, therefore (i. e. be- 
 cause the party was a papist), it was decreed, that the heir should have the 
 land, because the use and employment was not charitable, but ' supersti- 
 tious'."* 
 
 This is an important case on several accounts. It shews that, 
 not only were Protestant judges so utterly unscrupulous as deli- 
 berately, with hardly any colour of law (for there was then no 
 law against land being held hy Catholics), to deprive Catholics 
 of land they were legally entitled to ; but that, so early as the 
 reign of James I, the practice had begun to prevail of Catholics 
 leaving land to others of their own Church, " in the hope" that 
 the proceeds would be applied to the maintenance of their reli- 
 gion in this country. And it is obvious, that it was only the 
 expression of this hope, in the present instance, with such words 
 as led the Court to suspect the secret intent of the feoffor, which 
 frustrated his purpose ; aud if the feoffment had been absolutely 
 to the i^eoffee as if for his own use, the courts could not have 
 had even a pretence for preventing the land from passing. Upon 
 such conveyances, however, of course, no charitable use appear- 
 ing, the statute could not operate, and thus Catholics lost the 
 advantage of it ; which was, that conveyances invalid, or even 
 void, were aided and confirmed by this statute, provided there 
 appeared any appointment to charitable uses. It was even held, 
 
 * Duke (Moore's Exposition) c. vii, 127. 
 
 e2 
 
53 HISTORY OF THE LAWS OF MORTMAIN. 
 
 that a gift, for relief of seminary priests imprisoned under the 
 cruel penal laws, was not within the statute.* 
 
 It is plain, that the charity of the promoters of this act was 
 very exclusive; and that it was, indeed, an uncharitable charity.f 
 Still, as there was no law to prevent Catholics from holding 
 land, it was held under this act, that a "recusant" might be a 
 donee to a charitable use, i. e. provided it was not " supersti- 
 tious," as it would be, of course, if it had anything to do with 
 the Catholic religion.^ For charities not superstitious, however, 
 
 * Duke, c. vii. 
 
 + At first the act of Elizabeth was construed very liberally. And where 
 there was a case considered superstitious, if it were not a necessary or primary 
 object of the gift, the statute saved it from confiscation. (Duke, 89.) Thus, 
 in the reign of Elizabeth, a gift to the parson and churchwardens of St. 
 Bride's, to find for ever the donor's anniversary (appointing for it 20«.) ; and . 
 to pay to the poor is. %d., " in honour of the years during which Christ lived 
 upon earth"; it was adjudged that the land was not given to the king, for 
 "ihelast payment was good." (4 Coke, 116.) So where one devised houses 
 to a city company, to the intent that they should pay to such priest as 
 should pray for his soul, in the church of Chetham, so much for his salary : 
 it was held that the king should not have them, as they were not given to 
 Und a priest, but to pay a priest a certain sum. (Peele's case, Duke, 95 ; 4 
 Coke, 113.) Thus general statutes against religious or charitable gifts were 
 construed, as they should be, strictly by the letter ; whereas liberal enact- 
 ments in favour of such gifts were construed largely, and in accordance with 
 their spirit and purpose. Hence, even contrary to the intention of the act 
 of charitable uses, it was construed to embrace gifts for the support of 
 preachers {Pembre v. Knighton, Duke, 82, Poph. 139. Fensted v. Page, Duke, 
 82) ; and though priests were excluded, that was only on account of the 
 penal laws, and the exception ceased with the existence of those laws. And 
 so land or money might (as already stated) be given to a " popish recusant" 
 for charitable uses, and those uses might be general, and left in his discre- 
 tion. {Attorney General v. HerricJc, Amble, 712, devises of lands, particularly 
 for " charitable and pious uses", upheld.) Provided nothing appeared to 
 point out that the uses were Catholic, it would even appear -that in some 
 degree, indirectly. Catholic charities and pious uses might obtain the pro- 
 tection of the act, so long at least as it remained lawfulfor Catholics to hold 
 lands. It may have been this which ultimately led to their being prevented 
 from holding lands. 
 
 J Duke,^ in his treatise {temp. Charles II) on this subject says ---"If 
 lands or moneys have been or shall be given for finding of a priest, or main- 
 tenance of an anniversary or obit, or light or lamp in any church or chapel 
 or any like intent, these gifts are not charitable uses, intended by this statute 
 
HISTORY OF THE ;,AWS OF MORTMAIN. ' 53 
 
 it was impossible to devise greater facilities than were given by 
 this statute, Avhich equally dispensed with the common law as 
 the laws of mortmain, in their favour; and so much was it then 
 the policy of the legislature to encourage bequests for charity, 
 that wills. void at common law were held by Lord Bacon valid 
 under this act for charitable uses.* And, though Lord Coke 
 disapproved of the general policy of allowing devises of land, 
 and speaks slightingly of the statute of wills, he never makes an 
 observation against the act of Elizabeth ; but the whole tenor of 
 his remarks is in the reverse direction, and favourable to cha- 
 ritable bequests. And in the standard work of Swinburne, 
 written in the same age, no allusion is made to any apprehen- 
 sion of uadue influence as likely to arise in cases of such be- 
 quests. 
 
 Alterations afterwards took place in the law as to the alien- 
 ation by devise; but, like all former alterations of the law, they 
 applied equally to all devises for whatever purpose. Thus, when 
 the statute of Charles II had, by utterly abolishing the feudal, 
 entirely removed all restrictions on alienation by devise: the 
 statute of frauds and perjuries,t passed in the same reign (to 
 
 (of charitable uses), but superstitious uses, intended by tbe statute of chan- 
 tries." The statute of chantries, however, are terms only extended to en- 
 dowments already existing : and it did not follow that a gift was made under 
 that act, because it was not deemed within the statute of charitable uses : 
 the only consequence of which Avas, that it lost the protection of that statute. 
 But this distinciiion was afterwards forgotten ; and it was taken for granted 
 that what gifts the statute of Elizabeth did not hold as charitable, the act 
 of Edward confiscated as superstitious. Though the statute of chantries 
 only applied to chantries, etc., then existing. 
 
 * See cases cited in Duke. ' , 
 
 t In a case in the reign of Charles II, two witnesses swore that the tes- 
 tator did not make the will, but that one guided his hand ; and he made his 
 mark, but said nothing, nor was capable. On the other side, it was proved 
 that the will was according to his intention ; that he was sensible to the last, 
 though dying of a consumption; that three days after the will he was 
 sensible, and able to discourse, and so continued till death. The court said, 
 it was plain the witnesses had been dealt with ; and it was not to be believed 
 that a person in his senses (as thej were not able to disprove him to be), 
 would suffer another to guide his hand to a writing, and not say anything. 
 (Hudson's case. Skinner's Reports, 79.) And the court remembered a case 
 where the witnesses, telling a similar story, had been committed for perjury, 
 the attorney proving that the testator was sensible. 
 
54 HISTORY OF THE LAWS OF MORTMAIN. 
 
 repress, if possible, tlie frightful system of perjury which had 
 sprung up after the Reformation), required that all devises of 
 land should be in writing, and signed by the testator (or in his 
 presence and by his express direction), and be subscribed, in his 
 presence, by three or four credible witnesses ; a similar enact- 
 ment being made as to any declaration of trust. Subject to 
 these requisitions, however, as the act of Elizabeth was left ,in 
 full force, which applied equally to dispositions by devise, land 
 could still be left by last will, or otherwise alienated to any ex- 
 tent, to charitable or religious purposes, or even in mortmain, 
 without licence for charitable uses, within the scope of the act 
 of Elizabeth. 
 
 It ought here to be observed, that when, in the reign of 
 Charles II, the legislature once more restored full liberty of 
 devising land, they did so without retaining the old Catholic law 
 securing to the surviving family some sufficient provision : and 
 in the reign of William III, an act was passed* abolishing the 
 
 In the laws laid dowa from the Restoration to the Revolution, we find no 
 traces of any particular jealousy of depositions made by dying men, any 
 more than in the age of Elizabeth, when (as already has been noticed) acts 
 were passed ioi facilitating such dispositions for charitable uses ; precisely 
 the cases in which modern lawyers and legislators are most jealous. 
 
 A man speechless, lying at the point of death, may make a will by signs. 
 (Dyer's Reading on the Statute of Wills, iii, c. i, sec. 16.) So of a man deaf 
 and dumb by accident (Swinbourne 0?i Wills, 86, 87) ; or deaf by nature. 
 Before the statute of wills requiring signature, testator writing of a will 
 from the mouth of witnesses was sufficient. {Lawrence v. Kete, Att. 53.) 
 Though the deviser became senseless before the will is written, yet if it were 
 written before he died, it was a good will in writing. {lb.) 
 
 * In Glanville's time, the general law was, that when a man died all his 
 movables should be divided into three equal parts, of which one belongs to 
 his heir, another to his wife, and the third is reserved to himself, of which 
 third he has the free power of disposing ; and if he dies without leaving any 
 wife, the half is reserved to him. As late as the time of Charles I, this con- 
 tinued to be the general law. Between the reign of Charles I and the acces- 
 sion of "William III, a great change in the law took place, without any legis- 
 lation. The right tothe "reasonable part" became obsolete in the province 
 of Canterbury, except in the city of London ; the old law became extinct in 
 that province, and the whole of a man's personal property passed by his will. 
 In the reign of William III, an act was passed providing that this should be 
 so, notwithstanding the custom in the province of York. (Sir P. Palgrave's 
 evidence, 1844.) 
 
HISTORK 01' THE LAWS OF MORTMAIN. 55 
 
 last remains of the ancient law of England, securing to the sur- 
 viving relatives the "reasonable part" of the personal property 
 (after payment of debts) of testators. So that, as on the one 
 hand, it was a Protestant legislator who first especially appealed 
 to and encouraged death-bed dispositions in favour of charitable 
 purposes; so, on the other hand, it was a Protestant legislator 
 who first allowed testators totally to disregard and disinherit 
 their families, and leave their nearest relatives without reason- 
 able provision. 
 
 This was not, however, in favour of charity, but of trade. The 
 interests of trade were then predominant ; and the tone of the 
 judicature and of the legislature, now that Protestantism had 
 become perfectly in the ascendant, and Catholicism was fast 
 dying out of the country, became rapidly more and more unfa- 
 vourable to charity. 
 
 The Revolution, in fact, marks a new era in the history of 
 charity. The act of Elizabeth was still in force, dispensing 
 with the ancient laws of mortmain, even supposing those laws 
 not to have become obsolete and virtually repealed. Indepen- 
 dently of the act of Elizabeth, however, those statutes became, 
 it is contended, obsolete, or superseded by reason of the act of 
 Charles 11,* abolishing all feudal tenures; the whole mischief 
 having been, it is conceived, the loss of feudal services. f At all 
 events, from this time to the Revolution, there was not only no 
 restraint on alienations of land for charitable uses, but every 
 possible facility for them ; even the statutes of mortmain being 
 got rid of, either by the act of Ehzabeth in cases within its 
 scope, or by licence from the crown in other cases of gifts for 
 pious purposes : and consequently, magnificent endowments took 
 place under the encouragement of this law. One most remark- 
 able instance which may be cited as a specimen, is the founda- 
 tion of Sutton^s Hospital,^ already alluded to. 
 
 * 24 Charles II. 
 
 + A statute is superseded or obsolete, when it loses its force consequen- 
 tially by reason of the annihilation of the subject on which its power could 
 operate. Of this kind are all the acts concerning feudal tenures; they being 
 rendered obsolete by the act of Charles II, which abolishes the feudal tenures 
 themselves. — Introduction to Ruffhead''s Statutes, p. 23, note x. 
 
 X Sir P. Palgrave says : — " During the period from the accession of Eliza- 
 
56 , HISTORY OF THE LAWS OF MORTMAIN. 
 
 Perhaps it was designed to renew the mortmain laws, or re- 
 move a doubt as to their repeal, or indirectly to get rid of the 
 act of Elizabeth in some degree, that the act of William III 
 paseed, reciting : — 
 
 " That it would be a great hindrance to learning and other good and cha- 
 ritable works, if persons may not be permitted to found colleges or schools 
 by granting lands, etc. to bodies politic or incorporate."* 
 
 No doubt this would be a " great hindrance", if persons were 
 not permitted to do this ; but the fact was, they were so per- 
 mitted by the act of Elizabeth dispensing with the law of mort- 
 main for charitable uses, even assuming the law not obsolete 
 
 beth to the accession of George II, there was no material diminution of the 
 favour shown to charitable foundations, or the general average of pious feel- 
 ing. Of course it took different shapes, according to the opinions of the 
 parties. One class, which might be called the high church class, might be 
 more favourable to the establishment of hospitals for the poor, alms-houses, 
 and other foundations, bearing a species of resemblance, as far as the altered 
 state of the Church of England would allow, to the foundations which had 
 existed before the Reformation. Others, who might incline to the puritan 
 party, founded lectureships. Alms houses, and other charitable foundations 
 for the poor of an eleemosynary character, were taken up with great zeal by 
 all parties : so also was the foundation of ^ smaller grammar schools, not 
 assuming that collegiate appearance which some of the larger foundations 
 obtained : hospitals for the sick were also found from the era of the Revolu- 
 tion." But there is far more reason to say, with Digby, " Since the time of 
 the Reformation, the institutions of mercy have wholly lost the character 
 which belonged to them in the ages of faith. Protestantism, indeed, is in one 
 respect unearthly — that it cannot be traced by any visible monuments in 
 the world. As a religion, it founds no hospitals.; private philanthropy, and 
 the policy of government, must provide for such wants. The modern insti- 
 tutions are rather for the material advantage of society, without any regard 
 for the eternal interests of the people. The honour of having constructed 
 even these poor and transient edifices, is claimed by men with a vanity that 
 savours of imblessed times. There are no holy images, no venerable habits, 
 no solemn chants, no altars : but, in their place, pompous and pedantic in- 
 scriptions, which extol the merit of the founders. The grandeur and beauty 
 of the ancient edifices is of course to be sought in vain ; for when the poor 
 had lost fhfi dignity which they enjoyed in consequence of the power of the 
 Church, and the principles of faith, that the asylums for these all around 
 should be in harmony with their new position in society, was a natural and 
 necessary result.'' {Mores Catholici, b. vii, c. 9.) How true this, the Pro- 
 testant charities of the age of the Revolution will testify soon. 
 ,* William III. 
 
HISTORY OF THE LAWS OF MORTMAIN. 57 
 
 by reason of the abolition of the feudal systems^ so that no such 
 " hindrance" existed^ and no fresh facilities were required for 
 charity^ nor was this intended, but rather, the indirect withdrawal 
 of those which had been granted for former acts of parliament ; 
 this statute proceeds to provide : — 
 
 " That the Crown might grant to any person, or bodies politic or corporate, 
 licence to alien or acquire in mortmain," etc. 
 
 Such licence was not, by the law existing, required for this 
 purpose by charitable bodies corporate; and therefore, under 
 cover and pretence of removing a restriction, this act in reality 
 imposed one upon dispositions of land for charitable purposes. 
 This act takes no notice' whatever of the act of Elizabeth; it was 
 passed in 1696, and in less than ten years afterwards, we find 
 the whig lord chancellor, Cowper, declaring, that the act of Eliza- 
 beth had been carried too far in favour of charity.* And he and 
 succeeding chancellors, in accordance with this feeling, pro- 
 ceeded to overrule the early decisions upon it, of Bacon and 
 other of the old chancellors, which allowed a devise void at com- 
 mon law, to take effect under that act as a charitable dispo- 
 sition. 
 
 There were symptoms of a new tone and temper adopted by 
 the judicature and legislature of the age in respect to charity, 
 no doubt in harmony with the spirit of the age; which was 
 marked by the love of money. And as, after the Reformation, 
 charity had suffered so far a decline, that it was rather displayed 
 in the last wills of the dying, than to the gifts of the living ; so, 
 after the Revolution, charity suffered a still further decline, and 
 parliament and the judges, following the feelings of the people, 
 even begrudged charity the benefit of these tardy dispositions, 
 and indicated an inclination to prevent them. 
 
 Such having been the temper of the Revolution-parliaments- 
 as to Protestant charity, it may be imagined with what dispo- 
 sitions Catholic charity would be regarded. 
 
 In the reign of William IIT,t in which the act was passed for 
 indirectly defeating Protestant charity, a statute was enacted to 
 prevent, if possible, the very existence, or at least the spread, of 
 
 * See cases cited in Duke on Charities. 
 t 11 and 12 William III, c. 4. 
 
58 HISTORY OP THE LAWS OF MORTMAIN, 
 
 the Catholic religion in this country. The only means by which 
 the priesthood could be supported (as charities for that purpose 
 were illegal) was by their being harboured in the houses of the 
 Catholic gentry or nobility; and hence an infamous measure 
 was projected to deprive them of this protection, hj prohibiting 
 Catholics from holding any lands at all. Thus the act for pre- 
 venting the growth of Popery passed, the cases upon which show, 
 that it was in pursuance of the policy of the acts suppressing reli- 
 gious houses, and other confiscating statutes of the Reformation. 
 Its object was to prevent Catholics holding land at all; and it 
 proceeded by plain positive prohibition, enacting : — 
 
 " That from the 29th September 1700, if any person educated in the 
 popish religion or professing the same, shall not, within six months after he 
 or she shall attain the age of eighteen, take the oaths of allegiance and ab- 
 juration [i. e. against the spiritual supremacy of the Holy See, and in favour 
 of the spiritual supremacy of the Crown], every such person shall be dis- 
 abled and incapable to inherit or take, by descent, devise, and limitation, 
 any lands, tenements, or hereditaments ; and every papist or person profess- 
 ing the papist religion shall be disabled and incapable to purchase, either in 
 his own name, or the name of any other person, to his use or in trust for him,, 
 any lands or proJUs out of land ; and that all estates, terms, and any other 
 interests or profits out of lands, for the use of any such persons, or upon any 
 trust or confidence to or for their benefit, shall be utterly void." 
 
 One of the very first cases decided upon the act, was the fol- 
 lowing :— 
 
 " In 1660, Lord Gerard settled the estate in tail ; and in 1676, sent his sons to 
 St. Omers, where they were educated in the Catholic religion ; dying in 1707. 
 The Duchess of Hamilton claimed the lands as right heir, on the ground that 
 the two sons, having been educated as Catholics, were incapable of taking. 
 In 1713, the case was decided in the Common Pleas in favour of the Catholic* 
 Then a writ of error was brought ; and the judgment, after repeated argu- 
 ments, was affirmed in the reign of George I.+ The case was carried to the 
 House of Lords, and there, after hearing the opinions of eleven judges, the 
 judgment was finally affirmed."! 
 
 In 1713, the case of RadclifiFe v. Roper came on before Sir 
 Simon Harcourt, the lord keeper, assisted, " as it was a case of 
 consequence," by the Lord Chief Justice. The case is stated 
 thus, " in substance," in the report : — 
 
 * Strange, 383. t 2 Brown's Cases in Parliament. 
 
 X Lord Hardwicke was then at the bar. 
 
HISTORY OF THE LAWS OF MORTMAIN. 59 
 
 " A Roman Catholic had devised his lands to four trustees, two Papists and 
 two Protestants, to be sold for payment of debts and legacies, and by a codi- 
 cil, among other legacies, he devised the remainder, whether in realty or 
 personalty to two papists, and their heirs.* The question was, whether this 
 was a good devise, so as to disinherit the heir-at-law being a Protestant, 
 notwithstanding the act of WilUam III, to prevent the growth of popery ."t 
 " It was argued in favour of the devise, that there was nothing in the act to 
 prevent papists from selling their lands ; but the design of the act was rather 
 to compel them to sell, and turn their real into personal estates ; for the 
 maintenance of ancient seats in the hands of papists, was esteemed the chief 
 bulwark and support of popery, thither resorting jesxiits, etc. If a Roman 
 Catholic may sell, he certainly may give away the money arising from the 
 sale to a Catholic. If now a papist may do this in his life time, why may 
 he not, as to the reason of the thing, appoint this to be done by trustees 
 after his death? Otherwise, a Roman Catholic could not charge his lands 
 with portions for younger children of his own persuasion, or payment of his 
 popish creditors."! 
 
 On the part of the Protestant heir-at-law, it was arguedj that 
 the avowed object of the acts would be defeated if the devise 
 were upheld. It was said : — 
 
 " Protestant heirs of papist ancestors will always be disinherited, and it 
 will be easy to conceal a gift under a devise. It is strange to suppose the 
 legislature intended to leave Catholics free to take lands by devise, and to 
 prevent them taking it by purchase.§ For making a will is a serious act, 
 often done in extremis, at a time when men are more than ordinarily solicit- 
 ous so to dispose of their possessions, as they think, and will be told at least 
 by their priest, is most for the good of their souls, viz., to those of their own 
 communion.'' 
 
 It was held a good devise : but the case was carried to the 
 House of Lords^ and there, though the judges were equally- 
 divided, the peers reversed the judgment "by a great majority" .\^ 
 
 It is curious to observe, how the law was commented upon by 
 the judges in arguing another similar case : — 
 
 " Although the land was devised to the brother for life, and the remainder 
 
 * 10 Modern Reports. 
 
 t The object of which, the Chief Justice said, was to worh papists oitt of 
 their laiids. — 9 Modern Reports. 
 
 X The Chief Justice, in giving judgment, said, the arguments used as to 
 
 • the hardships to papists are of little force against an act of parliament which 
 
 is professedly intended to bring hardships upon them. — 9 Modern Eejwrts, 195. 
 
 § 1 James I, c. 4. 3 James I, c. 6. 3 Charles I,^. 2. 
 
 II 10 Modern Reports, 234. 
 
60 HISTORY OP THE LAWS OF MOUTMAIN. 
 
 to the sisters, between whom it was objected, was apparent consideration of 
 nature and blood ; and, though the testator had limited the sum to be env- 
 phyed upon the chaplain, by which (it was said) his intent appears to have 
 been to advance those of his blood (to whom he devised the l^nd), with the 
 residue of the rents, of which no disposition was made, so that they might 
 take the surplus to their own use ; after the devine services were performed, 
 and therefore, that the lands should not go to the king. Yet it was resolved, 
 that wives, sons, daughters, sisters, cousins, and other dear friends, were per- 
 sons within the act ; for if men, as well in their lives as in their testaments 
 after their deaths, used to put confidence in their kindred and dearest friends, 
 for their temporal goods, a multo fortiori, when they intended to dispose of 
 their temporal possessions for the good of their souls (as was then thought), 
 they would convey them to those in whom they had the greatest confidence ; 
 and in these cases of divine service concerning the health of the soul, it shall 
 not be intended any advancement or preferment of his blood, or any other 
 earthly considerations, but all shall be intended for the advancement and 
 continuance of the divine services, as things, without all comparison, most 
 worthy and excellent; and he who betrays such trust (the divine service 
 being according to the law of God), is, by many degrees, a greater ofiender 
 than he who doth not perform trust or confidence concerning temporal things; 
 for he who takes away anything given for divine service is sacrilegious.* 
 
 In the reign of George I, occurred the case of Lord Derwent- 
 water, who, being a Catholic, had settled his estates before his 
 execution for treason. The son, being an infant, claimed the 
 land; and the Court said : — 
 
 " It is plain, that papists, under the age of eighteen at the time of the 
 statute, may take by descent or purchase ; and at this day, a limitation in a 
 settlement, or a devise, to a papist under that age is good, so as such papist, 
 within six months after he comes to that age, conform and take the oaths ; 
 otherwise he loses the land only during his life."t 
 
 In another case, in the reig.n of George I, in the year 1 730,J 
 the question was, 
 
 " Whether the dependant, having conformed to the Church of England 
 by taking the sacrament according to the usage of the Church of England, 
 within sis months of her attaining the age of eighteen, was capable of taking 
 the residue under the will of a Catholic grandfather who died when she was 
 under fourteen: King, lord chancellor, clearly decreed in her favour contrary 
 to a former judgment of Lord Macclesfield ; and said the legislature had two 
 
 * Was this hypocrisy or sarcasm^ It must have been one or the other, 
 seeing that the judges were construing an act, the very object of which was 
 to "take away" property "given for divine service". 
 
 + 9 Modern Report?, 180. 
 
 X^Hitt V. Filkins, 10 Modern Reports. 
 
HISTORY OF THE LAWS OF MORTMAIN. 61 
 
 sorts of persons under their view — ^persons under eighteen and persons over 
 that age. As to the former, the legislature looked upon them as too young 
 to be fixed, -upon rational grounds, in any religion, and therefore laid on 
 them only a temporary disability, removable upon conformity. But, for per- 
 sons above that age, and who might be supposed fixed and riveted in their 
 religious sentiments, the legislature thought it to no purpose to expect their 
 conversion, and therefore laid a total disability upon them. The defendant 
 is therefore plainly capable of taking under the will, having performed those 
 external acts that were pitched upon hy the parliament as a sufficient proof of 
 her conformity." 
 
 In the reign of George I, in the year 1 723, occurred the case : — 
 
 " Sir Laurence Anderson, being the eldest son, went to Douay, and there 
 became a monk; thereupon Francis, the next brother, assumed the title, 
 and possessed himself of the estate ; but, being found guilty of high treason, 
 his brother, the monk, claimed it. The commissioners of forfeited estates 
 examined him on oath ; and, as he acknowledged he was a monk, they de- 
 cided for the crown, for that he was dead in law. He appealed to the dele- 
 gates ; and the case was argued for him by Sir Philip Yorke,* he insisting that 
 he was not proved to be a professed monk. They allowed him to bring an 
 action. But, a little time afterwards, Sir Laurence tooh the oaths and received 
 the communion according to the Church of England, and became a Protest- 
 ant; and so enjoyed his estate without any further trial." 
 
 In the same reign of George I, the following case came 
 before the lord chancellor, before whom Mr. Yorke, the future 
 lord chancellor and the author of the act of George II, was 
 practising: — 
 
 " It devised land to trustees for Sir C. Cartwright, for his life and two years 
 longer, and dij'ected, that if any of his sons should, within two years, become 
 a Protestant and receive the sacrament according to the usage of the Church 
 of England, the trustees were to hold the estate in trust for such son ; and, 
 in case no son should conform, and any of the daughters should, within two 
 years, become a Protestant and take the sacrament according to the usage 
 of the Church of England ; then, in trust for such daughter, remainder over. 
 Sir Charles died : no one of his sons, within the two years, became a Protest- 
 ant, but one of the daughters did, within that time, receive the sacrament 
 according to the usage of the Church of England, so that the trustees per- 
 mitted her to receive the rents and profits of the land. Pour years after, she 
 filed a bill to have the estate conveyed to her by the trustees ; to which they 
 conceived she was well entitled, by having received the sacrament according 
 to the usage of the Church of England, the test pitched upon by the testator: 
 of the sincerity of the conversion, Parker, lord chancellor, said, ' I am not 
 satisfied of the reality of the conversion of the daughter. As to the proof 
 
 * The future Lord Hardwicke. 
 
62 HISTORY O]? THE LAWS OF MORTMAIN. 
 
 offered of it, it is no more than the bare fact of having received the sacra- 
 ment, an act very common for Roman Catholics to do upon a worldly motive, 
 and then we hear no more of them. The witness who swears to her conver- 
 sion does not say, that he believes her now to be a Protestant. I will do 
 nothing now.* ' » 
 
 In 1734, in the reign of George I, a case occurred curiously 
 illustrating the way in which it was endeavoured to evade this 
 act : — t ' 
 
 " Peter Brown being possessed of land for a long term, which he had en- 
 joyed twenty-seven years ; by his last will declared, that the land was taken 
 by him in trust for the defendant Birmingham, to whom he devised the re- 
 mainder, and soon afterwardsX died. Thereupon the plaintiff filed a bill, sug- 
 gestingthat both the testator and the defendant were papists, and consequently 
 were incapable of taking the land; and therefore as the next Protestant 
 heir, prayed that it might be decreed to him. The court decreed for him 
 with an account of the profits from the filing of the bill. He insisted on 
 having the profits from the time the will took effect, but the chancellor re- 
 fused to give this or costs, for that it was hardship enough to lose the land." 
 
 It will be observed, that during the period in which these 
 cases were determined, not only was the Catholic religion pro- 
 scribed, and all trusts for its support illegal, but Catholics were 
 by law unable to hold land at all. The law, however, was evaded ; 
 and it may be convenient here to introduce an illustration of 
 the manner in which, even while the acts of Elizabeth and 
 William III were in force, property was left for Catholic pur- 
 poses. M. Riddell, a Catholic conveyancer, states :— § 
 
 " The more ancient of Catholic charitable foundations are regulated by 
 means of two, or perhaps three, sets of deeds. In one deed, the legal estate 
 is vested in trustees ; by the second deed, or by a familiar letter, instructions 
 are given how the rents and profits are to be given. In some of our founda- 
 tions, which arose prior to the statute of George II, I think three sets of 
 deeds have sometimes been introduced. The first deed- is a conveyance to a 
 Protestant trustee ; the second deed declares the trust of that deed to be to 
 pay the annual proceeds of the fund over to a Catholic trustee ; and then the 
 Catholic trustee has, in general, a letter directing him to what particular 
 objects the funds are to be given ; and that makes the arrangement complete. 
 
 * Cartwright v. Cartwright, 10 Modern Reports. 
 
 t Winter v. Birmingham, 9 Modern Reports. 
 
 % This could not have escaped the attention of Sir P. Yorke then at the 
 bar; and might obviously have suggested his enactment against wills or 
 death-bed gifts. 
 
 § Report of Committee of House of Commons, 1851, p. 37. 
 
HISTORY OF THE LAWS OF MORTMAIN. 63 
 
 The object, as 1 imagine, of this arrangement was, that the whole transac- 
 tion, being for Roman Catholic purposes, was altogether .void ; and, by the 
 interposition of a Protestant trustee, in case a question arose in any court, 
 he might be the party to defend the foundation ; and, therefore, the letter of 
 instruction has generally been kept perfectly secret. In a case in which my 
 brother was concerned, I have got one of the letters. In those cases where 
 there were three deeds, the first conveyed the legal estate generally to Pro- 
 testants ; the second deed was a declaration of trust, that the Protestant 
 should pay over the funds to the Catholic trustee, leaving the legal estate 
 in the first trustees, and then declaring by the second deed, what the in- 
 tended trusts were ; and the third was a secret declaration of trust, founded 
 upon the previous declaration : of course the whole transaction was void at 
 law. The foundation to which this relates was founded by Mr. Stephenson 
 in Westmoreland, at a place called Dodden Green. The date Of this decla- 
 ration of trust is 19th April, 1719. I ought to state, that it was directed to 
 Mr. Thornburgh, who is my maternal ancestor, through my grandmother, 
 who was an heiress ; and the right to this nomination is vested in my eldest 
 brother. It is as follows : — ' Because, in these evil times, we cannot without 
 hazard of trouble and seizures, leave any alms to pious uses by express deeds 
 and declarations ; nevertheless, such religious legacies are beneficial to ovir 
 souls, a charitable help to salvation, and a necessary relief to poor Catholics, 
 and a support to the ministers of God's Church, and therefore not to be 
 omitted, but to be contrived with all possible secrecy, even from our trustees 
 themselves, till convenient time, lest by inquiries and oaths they may be 
 obliged to forced discoveries. For these reasons, I did not express my inten- 
 tions to you, but have left this letter to declare my purposes, settlements, 
 and legacies, depending entirely on your known friendship and honesty, that 
 you will cause them to be punctually observed and performed. By my deed 
 poll, bearing date the 14th May, in the year of our Lord 1714, I did direct 
 that certain sums therein expres^sed, should be paid to the persons therein 
 named, and the surplus of all my freehold and customary lands mentioned 
 in the same deed (after the payments were made out of them), should be 
 paid to my executor or executors, to be employed and disposed of in such 
 manner as I, by schedule or note under my hand, should declare and appoint. 
 By my last will and testament, bearing date the 23rd of March, in the year 
 of our Lord 1718, I made you, and Thomas Atkinson of Crosthwaite (whose 
 name is only used as a cover and protection), my executors and residuary 
 legatees of all my personal estate, to be disposed of according to a schedule 
 or note under my hand. Now by this my letter, schedule, or note, I declare 
 to you that it is my will, mind, and appointment, that all the sums, and 
 every of them mentioned in my said deed poll, shall be paid to all and every 
 the persons therein named, not from the lands therein mentioned, but shall 
 be really paid and satisfied out of my said personal estate, unless revoked by 
 a writing bearing date the 15th day of April, in the year 1719 : and it is fur- 
 ther my will, that the payments appointed in this last-mentioned writing 
 shall be also paid from my said personal estate : and I do hereby moreover 
 
b4 , HISTOUY OF THE LAWS OF MOETMAIN. 
 
 declare, that the above-mentioned surplus or remainder is left to my execu- 
 tors only in trust, and not for their own use, but for uses to be expressed on 
 the other side. I do therefore lastly declare, that it is my will, mind, and 
 appointment, that all the freehold and customary lands mentioned in my 
 said deed poll, and all the products and profits of them whatsoever, shall be 
 for ever employed and applied to and upon the maintenance of a priest of 
 the secular clergy of Dou8.y College, to assist the poor Catholics in the parish 
 of Kendal, and towards an alms to all sorts of poor persons at the door of 
 the dwelling-house named in the said deed poll, or at some convenient place 
 in Skelsmergh. In conclusion, it is my will and mind, and hereby I request • 
 and require of you and your heirs and assigns, and all others holding from 
 you, that, with all due regards to honour, conscience, and our holy religion, 
 you shall, from time to time do such act and acts, thing and things, which 
 may contribute to the management, surety, and preservation of this my 
 donation, and in the best and safest manner express and perpetuate the uses; 
 your charges upon all occasions, and all suits in law, being defrayed out of 
 the said lands and profits. This is the trust reposed in you with much con- 
 fidence, and recommended to you and your posterity and assigns in the 
 name of God, by, dear sir, your ever faithful friend and humble servant, 
 Robert Stephenson.'' The letter which I have just read from Mr. Stephenson 
 to Mr. Thornburgh, would be what I have spoken of as the third document, 
 which now regulates the trust of this foundation. In this case, among some 
 of the early papers, I find that a suit was commenced by some parties claim- 
 ing either as heirs-at-law or in some other character (it does not distinctly 
 appear what), and, upon that occasion Mr. Gibson, the Protestant trustee, 
 was the party who came forward to defend the suit, under the advice and 
 control of Mr. Thornburgh ; and there is a correspondence between them 
 upon the subject. Of that trust, as far as I have been able to trace the trust, 
 it appears to have been managed by the descendants of Mr. Thornburgh up 
 to the time when the heiress married my grandfather. At the time when 
 that gift was made, it was the custom for Roman Catholic donors to state 
 the objects of the gifts in the broadest and most general terms, in order to 
 prevent discovery. In cases like that, the nature of the trusts now-a-days 
 is generally inferred, rather from the practice which prevailed at the time 
 when the laud was given, than from any statement of the purposes contained 
 in the gift."* 
 
 It will have been observed, that some of the most remarkable 
 of the cases decided on the " Popery Act" of William III, were 
 determined during the time Sir P. Yorke, the future Lord 
 Hardwicke, was at the bar; and some were argued by him, and 
 subsequent cases were actually decided by him in such a tone 
 as to indicate a perfect approval of its persecuting policy. This 
 is important as showing, that precisely the same principles and 
 
 * Evidence of Mr. RiddeU, Committee of 1851. 
 
HISTORY or THE LAWS OP MORTMAIN. 65 
 
 feelings led to that act and to" the act of George II, to which we 
 are now about to advert, and of which he was the author.* The 
 latter act was clearly a development of the former, as that had 
 been in pursuance of the confiscating legislation of the Reform- 
 ation. It was plainly impossible to render the law, as against 
 Catholics, more rigid, for it precluded their holding land for 
 any purpose. It was, however, now resolved to legislate against 
 Protestant charity, so far as it existed, which appears to have 
 been only, or principally, iu the inferior form of legacy. Let 
 it be remarked, that at this period there were not, nor had 
 there yet been, any laws whatever passed to restrain gifts or 
 "bequests for charitable or pious purposes. 
 
 It must be premised, that this period was the most corrupt 
 that had ever occurred in the history of this country. Venality 
 pervaded every parliament : the Trevors and the Walpoles ruled 
 by means of bribery as gross as that which disgraces a low 
 borough election at this day : it was an age in which statesmen 
 were concerned in such shameless swindlings as the South Sea 
 Company scheme; — an age, in which the lower classes, even 
 
 * Lord Hardwicke,the author of the act, was a bigoted Protestant, and bitter 
 upholder of the atrocious popery acts ; and his own act (which,as Sir F. Pal- 
 grave says, shows him to have been narrow-minded and bigoted),is a proof how 
 naturally allied are bigotry and narrowmindedness, and how hatred to Catholi- 
 cism involves an aversion to charity and religion. Within a few years of the 
 passing of the act 9 George II, several curious cases came before Lord Hard- 
 wicke, then chancellor, under the " Popery Acts," as they were called — the 
 acts prohibiting " papists" from holding land unless they " conformed". In 
 one case itwas held, that a devise to a widow, a papist, above the age of eighteen 
 at the death of testator, was void. — {Borlace v. Newland, MSS. case, 15 Geo. II, 
 cited Viner's Abridgment, Devise I. 7.) In another case, a testator had de- 
 vised lands to one Moore ; and the heir-at-law insisted that he was " edu- 
 cated in the popish religion, and now professed the same". To which it was 
 answered, that he had conformed to the Protestant religion by taking the 
 oaths, etc. This, however, would not do for the chancellor, who said, " I am 
 not satisfied as to the conformity. He might easily have obtained a dispen- 
 sation for going to church, though not for receiving the sacrament; and, 
 though there is no public conformity the law takes notice of further than 
 going to church and receiving the sacrament, yet it is well known he might 
 solemnly and publicly renounce the errors of the Church of Rome, but no- 
 thing of tl^e kind appears. — {Wild^oose v. Keble, 17 Geo. II, MSS. Reports, 
 cited Viner's Abridgment, title Devise I. 7.) 
 
66 HISTORY OF THE LAWS OF MORTMAIN. 
 
 ■women and children, were given up to gin-drinking and drunk- 
 enjiess*— r-an age, in which the higher classes were so irreligious 
 that Bishop Newton wrote his work on prophesy, to counteract 
 sceptical ideas among the aristocracy; and Bishop Butler declares 
 it was considered an indication of imbecility to avow a belief in 
 Revelation. It was an age, in which the character of the middle 
 and upper classes^ as described in a debate in the House of 
 Commons in the very same year,f or by the ProtestantJ histo- 
 
 * See the Debates on the Spirit Duties' Bill, 1736. 
 
 ,+ " Mr. Plumer, in moving the repeal of the Test Act ' for preventing the 
 dangers which may happen from Popish Recusants', said : — ' There are great 
 numbers of faithful subjects who have the misfortune of believing that some 
 of the opinions established hy our Chwrch are not consistent with Christianity, 
 and that some of our religious ceremonies tend towards idolatry; and such 
 men cannot communicate with the Established Church, And when I con- 
 sider the reverence due to the sacrament of the Lord's Supper — a sacred 
 mystery which none ought to approach without having first diligently exa- 
 mined themselves, and to which all are to be invited but none are to be com- 
 pelled ; I am surprised that it should ever have heen turned to such profane, 
 use, as that of qualifying a man for being an adjutant to a regiment, or the 
 bailiff of a little borough. This is perverting it to an use for which it was 
 never intended, and this perversion has produced great abominations. It is 
 well known how many have been monthly partakers of the Holy Communion, 
 for the sake only of entitling themselves to some lucrative post or employ- 
 ment ; it is well known what terrible indecencies some have been guilty of 
 upon such occasions, and what a scandal has often been given thereby to 
 those who are truly devout. This is so generally known, that it is now the 
 common practice, in all the churches of England, for the curate to desire 
 the legal communicants, if there be any such (I mean, those who come there 
 in obedience to' the statute), to divide themselves from those who come 
 purely for the sake of devotion ; and, indeed, it were to be wished that none 
 of the former should ever be allowed to communicate in the presence of 
 much less art the same table with, any of the latter ; for the former are often 
 so well known to be monthly partakers, that their being admitted, upon 
 any pretence whatever, gives great offence to the truly religious, and tends 
 to subvert the morals of the vulgar, by lessening that esteem which they 
 ought to have for the established religion, and which our magistrates will 
 always cultivate with every possible care. But this, by long and general 
 experience, we know is not to be done by penal laws ; on the contrary, such 
 guarantees for the established religion of any country, have always produced 
 pride, ignorance, luxury, and oppression, among those of the Established 
 Church." — Parliamentary Debates, 1736. 
 
 X Smollett, speaking of the year 1730, says :—« England was at this time 
 
HISTORY OF THE LAWS OF MORTMAIN. 67 
 
 rians of the period, was one combining profligacy, impiety, and 
 hypocrisy. 
 
 infested with robbers, assassins, and incendiaries — the natural consequences of 
 depravity and corruption. The peculiar depravity of the times was visible 
 even in the conduct of those who preyed upon the commonwealth." Wynd- 
 ham spoke of the prime minister, Walpole, as " a man destitute of all ideas 
 of virtue and honour, and lost to all sense of shame and reputation ; pursuing 
 no aim but that of aggrandizing himself; possessed of immense wealth, the 
 plunder of the nation ; with a parliament chiefly composed of members whose 
 seats were purchased, and whose votes were bought up at the expense of the 
 public treasure." (Pari. Debates, 1734.) At the same time, " a bill to pre- 
 vent the infamous practice of stock-jobbing made its way with difficulty to 
 the House of Lords, where it was laid aside." (Smollett, 1733.) A year 'or 
 two before, parliament was occupied with the " Charitable corporation", 
 which had been established in 1707, on the professed plan of lending money 
 at interest to the poor, upon small pledges. What a contrast to the charity 
 of the ages of faith, when usury was repudiated even upon loans to the rich ! 
 But the history of the times shows clearly that this was an age of usury, 
 rather than of charity. The cashier and chairman "absconded ; and an inves- 
 tigation ensued, by which it was discovered that the corporation had been 
 defrauded of almost all the capital by the directors ; and Smollett says, 
 " many persons of ranJc and quality were concerned in this infamous con- 
 spiracy ; and some of th.& first characters in the realm did not escape sus- 
 picion and censure." Two baronets were expelled the House of Commons in 
 consequence of these disgraceful disclosures. The House of Commons re- 
 ceived a communication from Rome, to the effect that the cashier had been 
 there arrested, and that he and his papers would be delivered up : but they 
 rejected the offer with disdain, as "an artifice to insinuate a favourable 
 opinion of the pretender", as if he had taken measures for securing the de- 
 linc[uent from zeal for justice, and affection for the English nation. Such 
 was the legislature in the reign of George II ; displaying a bigotry as dis- 
 graceful as their depravity ! Smollett says, speaking of the commencement 
 of the reign : — " The vice, luxury, and prostitution of the age, — ^the almost 
 total extinction of sentiments of honour and public spirit, — ^had prepared 
 the minds of men for slavery and corruption." And at the close of the pre- 
 ceding year, the enormous imposture of the South Sea Company had occurred ; 
 "in which the House of Commons discovered", says the historian, "a train 
 oi fkQ deepest mllainy and fraud th.s,t hell eyer contrived": in which were 
 implicated the Earls of Sunderland and Stanhope, Mr. Secretary Craggs, Mr. 
 Chancellor of the Exchequer, the Duchess of Kendal, and a score of mem- 
 bers of Parliament (several of whom were taken into custody and expelled). 
 Smollett says : — " The whole nation was infected with the spirit of stock- 
 jobbing to an extraordinary degree, and people's attention wholly engrossed 
 with this and other chimerical schemes, known by the denomination of 
 
 f2 
 
68 HISTORY OP THE LAWS OF MORTMAIN, 
 
 In such ah age of impiety, it was not likely that the legisla- 
 ture would cherish charity j and at a period when the courts 
 were enforcing laws to " prevent the spread of popery," by pre- 
 venting Catholics from possessing real property, the Cathohc 
 spirit of charity could not be expected more to influence the 
 parliament or the people. The strong ground taken by the- 
 promoters of the measure against dispositions, testamentary or 
 to take effect at death, for charitable purposes, was, that charity 
 so exercised was of an inferior, and sometimes spurious species, 
 compared with that which was exercised with self-sacrifice during 
 life ; but a measure to prevent charity from being so exercised, 
 was as uncatholic as the spirit which led to its being so com- 
 monly, if not exclusively, practised ; and the hypocrisy which, 
 under pretence of preventing spurious charitable dispositions of 
 a testamentary character, proscribed all, however unexception- 
 able, surely was not less unchristian. In fact, the promoters of 
 the measure, of whom the'principal was Lord Hardwicke (whose 
 zeal in enforcing the persecuting anti-popery acts has already 
 been alluded to), appeared by instinct to feel that they were 
 running counter to the old Catholic course and current of legis- 
 lation, and that, though their measure could not then in terms, 
 or practically, apply to Catholics, whom those acts prevented 
 from possessing land for any purpose, the new measure was quite 
 as much in pursuance and development of the Reformation acts 
 of confiscation, suppressing the religious houses. And, although 
 there was no connection between the proposed measure, applying 
 to all religious trusts, and the law of mortmain, which applied 
 only to religious houses; its promoters betrayed a bitter feeling 
 against the monasteries, while, at the same time, compelled to 
 confess the benefits they conferred upon the country. 
 
 " There is another evil lately grown up, not founded on our ancient con- 
 stitution, but which took its rise from having departed, about two centuries 
 ago, from the common law of the kingdom. I mean, in the liberty of grant- 
 ing and devising all sorts of land estates by wiQ, and even upon death-beds. 
 
 bubbles. Above a hundied such schemes were projected, to the ruin of 
 thousands, The nation was intoxicated with the spirit of speculation." 
 (Smollett, 1720.) Who will say that the character of the country had much 
 changed from 1720 to 1820, or from 1820 to 1850? The language just 
 quoted would be almost equally applicable to our own times. 
 
HISTORY OF THE LAWS OP MORTMAIN. 69 
 
 not only to the disappointment and disherison of a man's lawful heirs, but to 
 the prejudice of the public good. Happy was it for the nation and for many 
 great families in this kingdom, that no man had such a liberty in the times 
 of papers/ and superstition; for if then, men had granted their estates by 
 will, we should never have had a law against mortmain — we should never 
 have had a Reformation — nay, I doubt much if we should have had a layman 
 possessed of a land estate in England ; but, luckily for us, we did not think of 
 this alteration of the law tUl the Reformation was pretty far advanced, and 
 those monasteries and religious houses dissolved, who had been for ages the 
 taxers of every dying man's will, and the terror of all his relations." 
 
 How utterly false this was, has been shewn in the simple fact, 
 that almost all our monastic institutions were founded by the 
 gifts of the living, not of the dying ; and, with the self-contra- 
 diction of falsehood, the speaker had just disclosed this by re- 
 ferring to the notorious fact, that after the Conquest, until rather 
 late in our history, dispositions of land by devise were not in law 
 allowed at all.* 
 
 * " This liberty/ of devising land by will was first established by an act of 
 Henry VIII ; but there was some restraint left, for a man was allowed only 
 to devise one-third of his estate, and could not devise any to a corporation : 
 but, by an act of Charles II, he may devise all his estate ; and, by the act of 
 Queen Anne, he may devise it all to the Corporation of Queen Anne's 
 Bounty. But of late years we have found out a sort of use, called a cha- 
 ritable use, for the benefit of which a man may grant or devise his lands ; so 
 that, as the law stands, a man may on his death-bed, and in his last moments, 
 devise hia whole estate to any person or persons, in trust, for the benefit of 
 any charitable use."" — Speeches on tlie Bill, Parliamentary Debates, 1736. 
 
 How regardless of truth the supporters of the measure were, may be 
 gathered from the following passage : — " The injustice and inconvenience 
 are most emphatically and prophetically taken notice of by the great Coke, 
 in his remarks upon the Statute of WUls, whereon he says, 'many and 
 difficult questions, and most commonly disherison of heirs, when the devisors 
 are pinched by the messengers of death (he might ha,ve added some other sorts 
 of messengers), do arise and happen.' Prom these words, we may judge that 
 that great man did not approve of that statute." Very different is the lan- 
 guage of Sir F. Palgrave, who says, " It may be inferred that the lawyers did 
 not fear such impoverishment. Thus, when Lord Coke makes a remark upon 
 the statute of Henry VIII, by which the power of devising was given, and 
 which he says often tended to the disherison of heirs, though he blames the 
 statute generally for giving the power, he does not raise any objection to de- 
 vises for pious or charitable purposes; and, in the case he alludes to, the 
 question was between a devisee and an heir, not between a charitable foun- 
 dation and an heir." — Evidence before the Committee, 1844. 
 
70 HISTORY OF THE LAWS OF MORTMAIN. 
 
 " We have since then widely departed from the maxims of our ancestors. 
 The first breach was made by the act of 39 Elizabeth, enabling any person 
 to found a hospital. This extraordinary step was at that time somewhat 
 necessary, because our poor had then n» sort of provision made for them by 
 law, as they had been before that time taken care of by our monasteries and re- 
 liffioiis houses, and were left entirely destitute of any support by the dissolution 
 of those monasteries and religious houses. But by the act of the 43rd Eliza- 
 beth, the method of providing for the poor by rates was established, which, 
 if properly regulated and rightly ptirsued, would make all hospitals useless, 
 which method is the best, will appear from the nature of mankind. If you 
 give a man a hope of being provided for freely in his old age, or sickness, 
 he will not labour so hard or live so frugally. Whenever a man has neglected 
 to make provision when it was in his power, he never can be a real object of 
 charity, he deserves to suffer; and thepvhlic good requires thai he should, in 
 order to be an example and a terror to others. Hence no person should be 
 deemed an object of charity until his former behaviour has been strictly in- 
 quired into ; and whether the parish oflScers or the governors of a hospital 
 are most capable of doing"' this, it is very easy to determine. The parish 
 officers contribute, out of their own pockets, their share of the relief which is 
 given, and are answerable to the parish; they, therefore, will certainly always 
 be extremely cautious of giving a share of the parish charity to an unworthy 
 object. And we ought to take care that some sort of ignominy or contempt 
 should always attend a person's being provided for by any public charity. The 
 preteTices drawn from piety, charity, and compassion for the poor, are so far 
 from being real, that they are made use of only as a cloak for the vanity, the 
 pride, and the ambition of private men." 
 
 It is plain, from these passages, that the same corruption of 
 the national character which had caused the decay of charity 
 actuated this measure directed against itj and that the same 
 spirit of irreligion and inhumanity, which actuated the legisla- 
 ture in the dissolution of religious houses, animated them in 
 their present measure. There is a perfect identity and sympa- 
 thy to be detected between the feelings and ideas of the robbers 
 of religious houses and the framers of this law against charity. 
 The same hypocrisy and inhumanity, which had led the one 
 to plunder and suppress all the monasteries, the principle of 
 which they acknowledged to be faithful, under pretence of sup- 
 posed abuses in some, led their successors now to proscribe all 
 devises for charitable purposes, under the pretext that some of 
 them were not sincere. 
 
 So intense was the ignorance, and dense the prejudices 
 that then existed against Catholicity, that even the opponents 
 
HISTORY OF THE LAWS OF MORTMAIN. 71 
 
 to the measure argued thus, as to the reasons for the ancient 
 mortmain laws which no longer existed. 
 
 "We know, that while popery was established in this coixntry, all the 
 lands which the priests, regular or secular, could once get possession of, be- 
 came not only inalienable, but were in a manner torn off from the common 
 wealth and dismembered from the community, for they were rendered free 
 from public taxes, or from being obliged to contribute anything towards the 
 safety and defence of the kingdom." 
 
 How incorrect this is, the reader need not be reminded; hut 
 as one of the main misrepresentation's on which the measure 
 proceeded was, that the mischief against which the mortmain 
 laws were aimed, was the inalienability of lands granted to reli- 
 gious houses, it must he remarked, that as these lands, while 
 held by them, contributed fairly (often more than fairly) to the 
 burdens of the country, so they were as alienable as any other. 
 
 The noble lords went on to say: — 
 
 " The two chief reasons why no devises of land (except on burgage tenure) 
 were allowed at common law, were these : — the first arose from the nature of 
 the feudal tenure ; for, as all lauds were granted to men and their heirs for 
 certain services to be rendered to the lord or grantor, it was thought neces- 
 sary that the land should descend to the heir, to enable him to perform those 
 services'; and the tenant could not, even in his life, alienate the land without 
 the consent of his lord, so that it was unnecessary to give the power of de- 
 vising it. The other reason arose from the nature of the popish religion ; for 
 in all countries where that religion prevails, the monks and friars insidiously 
 watch the last moments of every dying person, in order to terrify him to the 
 giving great legacies to their respective fraternities." 
 
 The utter untruthfulness of this will be apparent when it is 
 recollected, that in the, vast majority of instances these frater- 
 nities had their houses founded and endowed by gifts of the 
 living and not of the dying.* 
 
 * The miserable misrepresentations of the ancient laws of this realm, 
 which have been exposed in the debate in the House of Lords on the act of 
 George II, were perpetuated by all the legal text writers, and have thus be- 
 come incorporated in what Dr. Newman and Sir P. Palgrave have called the 
 Protestant traditions, which at the present day support the popular preju- 
 dice against everything Catholic, and against religious endowments, because 
 they were originally Catholic. Thus one of the most modem law writers, 
 the Lord Chief Baron Gilbert, writing in 1736, put forth the following mon- 
 strous passage, which appears to have been the origin of modem opinion in 
 the profession on the subject. Speaking of the old feudal law abolishing 
 
72 HISTORY OF THE LAWS OF MORTMAIN. 
 
 The principal speaker argued in this manner: — 
 "I am far from disapproving of all charitable foundations, or of all dona- 
 tions to charitable uses either by deed or will ; but I am convinced that our 
 
 the ancient Saxon law allowing devises of land, he says : — " Thus the law 
 continued until the invention of uses, which were first found out by the 
 clergy to evade the statutes of mortmain ; for when those acts prohibited 
 them from making any further purchases of lands, they introduced the dis- 
 tinctions of the civil law between the usitsfructus and the property ; and as 
 they generally sat in chancery, where these uses were solely cognizable, so 
 they suffered them to be disposed of by wUl, as the usus is by civil law ; 
 rightly judging that men are most liberal when they can enjoy their posses- 
 sions no longer, and therefore at their death would choose to dispose of them to 
 those who only could promise them happiness in another viorld!" — Gilbert, 
 On Devises. 
 
 This passage wUl be appreciated, when it is recollected that the vast ma- 
 jority, if not all, the religious houses, were not founded by wUl, and most of 
 them at a time when the law allowed of alienation by will. As to the last 
 sentence of the paragraph, it may appear ludicrous to the Catholic reader, 
 but is lamentable as a specimen of the contemptible means taken by 
 the leaders of public opinion in this country to keep up a prejudice against 
 the Catholic religion. With servile fidelity it is copied in Blackstone, who 
 published his Commentaries ia 1762, having projected them in 1752, during 
 the lifetime of Lord Hardwicke, and whose work has, it is notorious, done 
 more than any other to settle the opinion of the educated classes in this 
 country, on all subjects connected with the Church. He says: — "When 
 ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct 
 from the land, uses began to be devised very frequently ; for it is observed 
 by Gilbert, that as the popish clergy then generally sat in the Court of 
 Chancery, they considered that men are most liberal when they can enjoy 
 their possessions no longer, and therefore at their deaths would choose to 
 dispose of them to those who, according to the superstition of the times, would 
 intercede for their happiness in another world." 
 
 There is something really rich in this, when it is remembered that the first 
 time in which a system of death-bed charity rose up was after the Reforma- 
 tion, in the age of Elizabeth, when a Protestant parliament passed an act 
 expressly to encourage it ! In the same spirit, Blackstone speaks thus of 
 tithes:. — "Appropriation of tithes took place, afterwards, and became in 
 general use till the time of King John, which was probably owing to the 
 intrigues of the regular clergy, or monks of the Benedictine and other rules, 
 who endeavoured to wean the people from paying their tithes to the secular 
 or parochial clergy (a much more valuable set of men than themselves), and 
 were in hopes to have drawn, by sanctimonious pretences to extraordinary 
 purity of life, all ecclesiastical profits to the coffers of their own societies. 
 And this will naturally enough account for the number and riches of the 
 
HISTORY or THE LAWS 01' MORTMAIN, 73 
 
 charitable foundations may become too numerous, and that some of those 
 we 'have already established may become too rich and extensive, if the un- 
 limited power of granting licences, first vested in the crown by the act of the 
 late King William, be not moderately used. However, as no wrong use has 
 been made of that power, there is no present occasion for laying any restraint 
 upon it, or laying any restraint on donations made to charitable uses by men 
 in full health and vigour, and to take effect immediately upon the executing 
 of the writings for that purpose. But, as for the donations which are made 
 by will, or by any deed in the nature of a will, and not to take place till 
 after death of the donor, I am of opinion that it is high time for. us to re- 
 assume the maxims of our ancestors, by restraining this testamentary power, 
 with respect at least to landed estates ; for by the specious pretences of 
 charity, the solicitations of those who are interested in charitable founda- 
 tions, and the pride and vanity of donors, it is highly ptobable that too great 
 a part of the land of the kingdom may soon come again into mortmain, to 
 the prejudice of the nation, and the ruin or disappointment of relations ; for 
 I cannot think it charity in a man to give, even to the most charitable use, 
 that which he cannot in himself possess or enjoy; the giving of such charity 
 I look on rather as an act of injustice towards the heir, than as an act of 
 charity in the donor." 
 
 monasteries and religious houses which were founded in those days, and 
 which were frequently endowed with tithes." It need hardly be observed 
 that there is not the slightest historical ground for all this ; on'the contrary, 
 it is well known to any one at all informed on the subject, that the religious 
 houses were previously and principally founded and endowed with grants of 
 land; and that appropriations of tithes were subsequent. The reason for 
 them is seriously stated thus : — " For a layman, who was obliged to pay his 
 tithes somewhere, might think it good policy to erect an abbey, and there 
 pay them to his own monks, or grant them to some abbey already erected ; 
 since for this dotation, which really cost the patron little or nothing, he 
 might, according to the superstition of the times, have masses for ever sung for 
 his soul" It is scarcely worth while noticing such nonsense ; but the writer 
 of it was well aware that such " dotations" of tithes could not be made by 
 the parties who paid them (See Lingard. See also Bede and William of 
 Malmesbury, and cases cited ante), and who took the land subject to the 
 burden, imposed long before by previous owners : and it might have occurred 
 to him that, " according to the superstition of the times" (which appears 
 reason enough with ^ch writers to account for any absurdity, however 
 egregious), the " patron" could not have masses sung for his soul" by giving 
 away what he had no power to give ; and that, moreover, masses could be 
 sung for his soul just as well at the parish church as at an abbey ; and, in 
 point of fact, the " chantries" or endowments especially for such purposes, 
 were most usually at parish churches. (See the statutes against charities, 
 and the cases cited anie^ 
 
74 HISTORY OF THE LAWS OF MORTMAIN. 
 
 No doubt all this was plausible enough, and might even be 
 admitted to be true; but, if it had been actuated by a sincere 
 regard for charity, the measure framed would have only operated 
 against the spurious charity, not against the genuine — against 
 bequests obtained for self, as well as for charity. 
 
 The whole argument was aimed at charitable bequests, as if 
 no others could be obtained improperly, and as if those always 
 were, whereas the very contrary is the fact. 
 
 " Though this unbounded liberty may be attended with some conveniences, 
 yet, I am persuaded, it often subjects dying persons to great trouble and so- 
 licitation, in that many of them have been, and many may be, obliged to 
 purchase the privilege of passing their last moments in ease and quiet at the 
 expense of their natural heirs, which I must call an injustice done to a man's 
 next relations, if they have never done anything to deserve being disap- 
 pointed of the expectations they are justly entitled to by the laws of the 
 country ; and it is certain that more lawsuits have sprung from these founda- 
 tions than from any other regulation in the whole body of the laws of 
 England." 
 
 This was artfully intended to produce the impression, that 
 suits were occasioned by improper practices on testators for 
 bequests to charitable purposesj yet the very reverse was the 
 feet, and all the cases reported were cases of improper influence 
 exerted for a person's private benefit.* 
 
 * At the time Lord Hardwicke passed his act, the Court of Chancery had 
 quite settled a very stringent system of control and supervision upon the 
 circumstances attending the disposition of real property by will. It had 
 been solemnly held a century before, in a court of law, that even the over 
 importunity of a wife may amount to such constraint as to set aside a wUl. 
 (Per EoU, C. J. on Hacker v. Neesborn, trial at bar, Style's Report, 427, a.d. 
 1654.) And recently this case had been upheld in Chancery. (Moneypenny 
 V. Brown, MS. cases of Lord Chancellor Talbot, a.d. 1711.) And anything 
 approaching to undue influence was deemed to destroy a will, especially if 
 partaking of a spiritual character, or where a weak person was influenced by 
 an oath extorted from her. {Ndson v. Oldfield, Vernon's Eeport, 70, a.d. 1688.) 
 And, indeed, it is important to observe, that the law, as laid down in the 
 courts at the very time the act passed, amply proves^hat, on the one hand 
 there was adequate protection against undue influence in any case whether 
 upon "persons languishing and dying" or not, and whether for charitable 
 uses, or in favour of selfish, private, and personal purposes ; and, moreover, 
 not only are there no cases reported showing any risk of undue influence in 
 the former class of cases, but such as are reported rather point to the danger 
 of its being exercised (as one would naturally suspect to be likely to be the 
 
HISTORY OF THE LAWS OF MORTMAIN. 75 
 
 The opponents of the measure contended : — 
 
 " That the natural right of a man to dispose of his own, in what manner, 
 and at what time he thinks most proper, ought to take effect. It is certain, 
 that the power to dispose of a man's estate at his death, in such a manner 
 as he may then think best, is a great incitement to industry and frugality, 
 and consequently a great encouragement to trade ; and the trade and riches 
 of the kingdom have increased more in the two centuries since this natural 
 right was restored, than they had in many ages before. It is true, that the 
 power may subject a man to solicitations and importunities; but so does the 
 possession of property in general, and if the argument be good as to real 
 property, it is equally true as to personalty, and we ought to return to the 
 old law (abolished by the act of William) prohibiting bequests beyond the 
 'reasonable part'." 
 
 That the species of charity which then principally, almost ex- 
 clusively, prevailed, was in the form of legacy, and characterised 
 rather by vanity than charity, might be expected from the irre- 
 ligious spirit of the age, and can be surmised from some remark- 
 able expressions in the speech of one of the supporters of the 
 measure and from some facts of contemporary history: — 
 
 " There is an extraordinary act (Queen Anne's Bounty) by which the 
 clergymen of the Church of England are united in some manner into a cor- 
 poration, and enabled (by Queen Anne's Bounty Act) to purchase lands in 
 mortmain, and our Church must necessarily become master of all the lands 
 of England ; and, considering the present prevailing madness for perpetuating 
 oTie's memory by leaving a large estate to some hody politic, the event is not at 
 such a distance as some may imagine. If a man happens to fall into the 
 delirious amhition of erecting a palace for beggars, and having his name en- 
 graved in gilded letters above a superb portico ; or, if he grow ambitious of 
 having his statue set up in the area of any charitable place, cannot he give 
 some part of his estate in his lifetime, and reserve a sufficient estate for sup- 
 porting himself.* 
 
 case), for private and personal advantage. Thus in Swinburne On Wills, the 
 cases supposed of undue influence, are on the part of relatives or physicians ; 
 and a minister of religion is not mentioned, although that was an age of 
 charitable bequests. It is clear the character of these bequests had altered 
 by the time of Lord Hardwicke, if there were any reason for the act at all, 
 beyond a hatred of charity in general. All the cases reported before the act 
 of George II (and there are very few of them), are cases of persons exercis- 
 ing undue influence for their own private advantage, in order to obtain pro- 
 perty for themselves. See Maundy v. Maundy, Chancery Reports 123, temp. 
 Charles I; Thynney. Thynne, Vernon's Reports 296, a.d. 1684; Nelson v. 
 Oldfield, Vernon, 76; Ooss v. Tracy, Williams's Report 287, A.r. 1715. 
 * Speech of a noble lord in the debate on the bill. — Pari. Deb. 1736. 
 
76 HISTORY OF THE LAWS OF MORTMAIN. 
 
 " If it be good and laudable to take care of the poor, to assist the widow 
 and fatherless, to relieve the unfortunate, to give bread to the industrious 
 and indigent, to nourish the tender infant, and succour the helpless aged ; 
 what can we think of a law which will be a great obstruction to charity, and 
 prevent persons -.from exercising it ? In no couiRry can these objects be 
 attained in a public way without a public fund, and the larger the fund the 
 more effectually will the poor be relieved and the distressed supplied. We 
 have, it is true, many hospitals in the kingdom, but they are far from being 
 sufficient for the purposes designed — to nourish and feed the children of the 
 poor, to educate them in the true principles of religion and morality, and to 
 breed them up to some trade or employment, are duties incumbent upon us. 
 But let us take a view of this great city,«or of any part of the kingdom, and 
 we shall see that the hospitals we have for poor children are far from being 
 sufficient ; and so of our hospitals for the sick or lunatics, since the charitable 
 foundations we have are not sufficient, it would not be good policy to make 
 laws by which their increase may be diminished. And with respect to good 
 policy, it makes no difference whether the grant or gift be a charity in the 
 donor or not ; for though a death-bed gift, or a gift to take place after a 
 man's death, has not the same merit with the charity which a man gives 
 away in his own lifetime, yet even supposing it proceed from pride and 
 vanity, so long as our charitable foundations stand in need of increase, they 
 ought in good policy to be encouraged where no real injury is done to any 
 particular member of society. And though a man be bound to support his 
 relations under misfortune, and even to leave them at his death sufficient 
 to support them, and prevent their becoming a burden to the public, yet 
 that he is obliged to leave a fortune to every one, or any one of them, is 
 what no one will pretend. They have no natural right to any greater share 
 of his fortune than he pleases to give them ; for it is a quality inseparable 
 from property, that the owner may dispose of it as he pleases."* 
 
 * The Lord Provost of Edinburgh stated that there had been, during the 
 last two hundred years, a great number of hospitals established in Edinburgh, 
 bearing the names of the respective founders : as, Heriot's, Donaldson's, 
 Watson's, Stewart's, etc. He expressed an opinion that there were far too 
 many of these institutions; and that they injured society, owing to the 
 manner in which they had been established by the founders. He went on 
 to say: "I believe they w& generally founded from personal vanity, to have 
 their names handed down with the institutions" And he said that some (as 
 Donaldson, for instance) neglected their own relatives for the erection of the 
 hospital; though he added that this was not so in most cases, and that they 
 generally provided for their relatives. However, it will at once occur that 
 this very motive implies the absence of children ; and it is to be added, that 
 it is also an evidence that disregard of near relatives, even in these extreme 
 eases, is rare. However, it appears plainly that at the period of the passing 
 of the act of George II, either there was a decline of genuine charity in the 
 nation, or a disposition to discourage it by legislation. Probably both causes 
 
HISTORY 01' THE LAWS OF MORTMAIN. 77 
 
 This reasoning shewed conclusively, that the object of the 
 measure was not to protect relations or procure them a proper 
 provision; for the way to do that, would have been to provide 
 that a certain proportion should be left for that purpose when 
 there were relatives not otherwise provided for j whereas the mea- 
 sure applied equally when there were no near relatives, or when 
 they were amply provided for. 
 
 The reader is now prepared to appreciate the act of George II 
 against charitable dispositions, testamentary, or to take effect at 
 time of death. It is commonly called, but very erroneously, the 
 modern mortmain act, as it has nothing to do with mortmain, 
 although the error is natural, for its author has endeavoured to 
 mystify it by mixing it with the old law of mortmain. Its title is : 
 " An Act to restrain Dispositions of Land whereby the same 
 becomes inahenable." Now, there were no such dispositions of 
 land, except only such dispositions in trust as required, for the 
 purpose of performance of the trust, that the land should not he 
 alienated; for, only in such cases, it is conceived, is the Court of 
 Chancery precluded from permitting lands, held in trust, to be 
 alienated for others just as appropriate for the purpose; and, at 
 law, a trustee is absolute owner of the land. At all events, if 
 the title truly expressed the object of the act, it would obviously 
 have been attained by giving to the Court of Chancery this 
 power — ^presuming the court not to possess it by virtue of its 
 general jurisdiction over trusts. The object of the promoters of 
 the measure, however, evidently was to convey an impression 
 that all land given in trust for pious or charitable purposes was 
 necessarily "inalienable", and that all land held for such pur- 
 poses was legally in trust. The first assumption has already 
 been disposed of, and, as to the second, it is sufficiently answered 
 by a reference to the law as laid down by Littleton in respect to 
 those religious houses against which the earliest statute of mort- 
 main was directed ; for thence it appears, that lands held by 
 these religious houses, although held for pious uses, were not 
 held legally in trust, the only trust being purely spiritual, and of 
 
 co-existed, and co-operated to produce the measure ; and it is not easy to 
 say which was most the inadequate or unworthy reason for the proscription 
 of reed charity — the decline, or the dislike of it. 
 
78 HISTORY OF THE LAWS OF MOETMAIN. 
 
 spiritual not legal cognizance; so that the religious houses not 
 only were at law absolute owners of the lands, but were un- 
 fettered by the jurisdiction of the Court of Chancery as to trusts, 
 and were able to alienate the lands at their pleasure; a fact 
 which explodes any idea of the object of the ancient statutes of 
 mortmain being to prevent lands from being made inalienable, 
 seeing that the lands held in mortmain by religious houses, 
 were not "inalienable"; whUe dispositions (to persons not in- 
 corporate) in trust, whereby alone the land could be inalienable, 
 were permitted by the law after and under those statutes. Yet 
 the preamble of this act of George II proceeds to recite the very 
 reverse. It declares : — 
 
 " That gifts or alienations of lands and tenements in mortmain are pro- 
 hibited or restrained by Magna Charta and divers other wholesome laws, as 
 prejudicial to and against the common utUity." 
 
 Now here is suppressio veri, in concealing that the only reason 
 for which these laws restrained such alienations as prejudicial, 
 was their causing loss of feudal services ; and that consequently 
 the laws were dispensed with when those services were secured. 
 And there is the suggestio falsi, in insinuating that the reason 
 for these laws still existed, whereas it had ceased with the feudal 
 system on which they were founded.* 
 
 "Nevertheless this public mischief has of late greatly increased, by many 
 large and improvident alienations or dispositions made by languishing or 
 dying persons, or other persons, to uses called charitable uses, to take place 
 after their deaths, to the disherison of their lawful heirs," etc. 
 
 Every line, almost every word of this preamble conveys or im- 
 plies an untruth ; either a false representation or a false impres- 
 sion. " This public mischief " — the mischief of the mortmain 
 laws, was the alienation of land (to corporations), which involved 
 the loss of feudal services. Yet it is here implied, that the 
 " mischief " was making land inalienable; whereas, lands held 
 by religious houses (the chief corporations concerned), were not 
 inalienable. Next it is implied, that the "mischief" applied 
 whenever land was left for charitable uses (by gift to take effect 
 at death), for all the epithets introduced are obviously irrelevant 
 and only inserted to create prejudice, produce wrong impres- 
 
 See note ants. 
 
HISTORY or THE LAWS OF MORTMAIN. 79 
 
 sions, and mystify the public mind. The " mischief" must arise 
 in principle on any alienation to which it applied, whether or 
 not it were "large" or "improvident"; and the latter phrase is 
 unintelligible except as construed with reference to the inca- 
 pacity of testator, or the neglect of due provision for families. 
 Neither of these senses is reconcilable with the other words of 
 the preamble, or with the provisions of the act. Persons may 
 be "languishing", and may believe themselves to be "dying", 
 who nevertheless survive ; and, on the other hand, persons may 
 make improvident dispositions in any sense that may be sug- 
 gested, who are not languishing or dying, and who have no heirs, 
 so that there can be no disherison ; yet the act equally applies. 
 Again, persons may make improvident dispositions, and even to 
 the utter disherison of heirs, for other uses than those called "cha- 
 ritable", for instance, to the "uses" of a mistress; yet to such 
 dispositions it appears the authors of the act had no objection ; 
 for the act applies only to " dispositions to charitable uses" to 
 take effect at death ; and it applies equally to all such disposi- 
 tions, whether by "languishing and dying persons" or "other 
 persons" ; and, whether there be disherison of heirs, or not ; and, 
 if there be no heirs to disinherit, which clearly proves that all 
 their expressions were introduced to disguise the real purpose 
 of the act, and to pass it under false pretences. 
 
 The act applied to all gifts of land for charitable uses to take 
 effect at the death of the donor. And it, first, totally prohibited 
 devises of land for such uses ; next provided, that gifts of land to 
 such uses should take effect a considerable period before death; 
 and thirdly, enforced certain requisitions tending to discourage 
 such dispositions. 
 
 The statute then enacts: — 
 
 " That no manors, lands, tenements, rents, advowsons, or other heredita- 
 ments, corporeal or incorporeal (or any estate or interest therein*), nor any 
 sum or sums of money, goods, chattels, stocks in the public funds, securities 
 for money or other personal estate, to be laid out or disposed of in the pur- 
 chase of any lands, etc.,t shall he given, granted, aliened, transferred, or 
 
 * Policies of assurance are not within these words. {March v. Attorriey- 
 Omeral, 5 Beavan's Reports, 432.) Nor shares in the gas light company. 
 {Thompson v. Thompson, 13 Law Journal, N. S., Vice-Chancellor Knight 
 Bruce's Court, 455. 
 
 t A bequest of a sum of money to be laid out in building a church or 
 
80 HISTOEY OF THE LAWS OF MORTMAIN. 
 
 assigned, or may be conveyed and settled to or upon any person or persons, 
 bodies corporate or politic, or otherwise, for any estate or interest, or any 
 ways charged or encumbered, by any person or persons in trust, or for the 
 benefit of any charitable uses"* 
 
 It is only gifts for charitable purposes which, are affected by 
 this statute. And it is not allowable at all to devise any land, 
 or money charged on land, or to be laid out in land, for charita- 
 ble purposes.f The relief of the poor,J or the support of 
 schools,§ or the erection of a church,|| are all, of course, " charit- 
 able uses" within the prohibition of this act: — 
 
 " Unless such ' gift', etc., of any such lands, etc., or personal estate \i. e. 
 to be laid out in land], other than stock, be made,ir by deed, indented, 
 sealed, and delivered** in the presence of two or more credible witnesses, 
 
 chapel is therefore void (subject to very statutable exceptions under church 
 building acts) ; and a grant must be made twelve months before death, etc. 
 {Pritchard v. Ashoun, 3 Russell, 456; Attorney-General \.Ac]cland, 1 B. and 
 M.) And not only is this held of money expressly left and directed to be 
 laid out in land, but also of any legacy, the carryiag out of which the courts 
 choose to consider implies and involves the purchase of land. {MiUbanh v. 
 Hudson, Daniel's Reports, 259.) 
 
 * Hence a grant or bequest of land or real estate to repair a tomb, or 
 erect a monument, not being charitable, is legal, notwithstanding the statute. 
 {MdlicJc V. Asylum, Jacob's Reports, 181 ; Doe dem. Thompson v. Pilcher, 3 
 Maule and Selwyn's Reports, 407 ; and 6 Taunton's Reports, 359.) 
 
 t Therefore a general grant of land to one, with, a desire that he shall 
 convey to charitable uses, is void. (Doe dem. Burdett v. Wright, 2 Bamwall 
 and Alderson's Reports, 710.)' 
 
 X Doe dem. Preece v. Eowells, 2 Bam. and Adolp. Reports, 744. 
 
 § KirTcbanh v. Hudson, 1 Donel's Reports, 259. 
 
 II Pritchard ■<!. Osborne, 3 Russell's Reports, 456. But churches in con- 
 nexion with the Establishment are .exempted by modem acts to some extent ; 
 as also are schools. (See a series of acts on this subject, 14 and 15 Victoria, 
 c. 24.) A most important case was reported in 1850, marking out another 
 way in which the act may be evaded. There a devise of lands to a corpora- 
 tion in trust, to distribute the rents annually among certain specified families 
 according as they might need assistance, was held good, because it gave a 
 beneficial interest to certain particular persons, and was not in the nature of 
 a charity. {Liley v. Hay, 1 Hare's Reports, 580.) 
 
 IT These are four distinct requisitions, default in any one of which renders 
 the transaction void ; and it need hardly be said that this occurs in number- 
 less cases, of which some are subjoined. 
 
 ** By deed. No land, therefore, can be left by devise for a charity. But 
 land may be left by will to trustees, to sell and apply the proceeds to pay- 
 
HISTORY OF THE LAWS OF MORTMAIN. 81 
 
 twelve calendar montha, at least, before the death of such donor or grantor, 
 and be enrolled in the Court of Chancery within six calendar months after 
 the execution thereof;* or unless such stocks {i.e. to be laid out in land) be 
 transferred in the public books for transfer, six calendar months before the 
 death of such donor or grantor. And unless the same be made to take effect 
 in possession for the charitable use intended immediately from the maJcing 
 thereof." 
 
 The gist of this of course was, to prevent parties from dispos- 
 ing of property by deed to take effect at their deaths, which 
 would, in substance, be a devise. This and the following pro- 
 vision are designed to prevent parties from disposing, in any way, 
 of any real property to charitable uses, who have not more than 
 they require for their own support during their lives — by far the 
 largest class: — 
 
 " And be without any power of revocation, reservation, trust, condition, or 
 agreement whatever, for the benefit of the donor or grantor, or of any per- 
 sons claiming under him." 
 
 This provision is in furtherance of the preceding one, and pre- 
 vents a party from disposing of his land, absolutely, to charita- 
 ble uses by deed, reserving to himself a life-estate or a rent- 
 charge, or the right of enjoyment of the land during his life; 
 which would, in effect, enable him to do what ordinarily is done 
 by a devise, viz., retain the property for his own support during 
 his life, and dispose of it for charitable uses after his death. 
 
 " And all gifts, etc. of any lands, etc. or any charge, etc. affecting or to 
 affect lands, etc. or any stocks, money, etc. or other personal estate, to he laid 
 out in the purchase of lands,f etc. to or in trust for any charitable uses, which 
 
 ment of legacies to charitable societies. (Doe dem. Chidgley v. Harris, 16 
 Law Journal, Exchequer, 190; Young y. Grove, Ibid., Common Pleas, 216.) 
 It has been held, however, that a devise of land to be sold, and the proceeds 
 applied in building a school, etc., in case land for the site should be granted 
 within a certain time, is void ; as is any bequest tending to bring land into 
 mortmain, or to induce others to do so. {Trye v. Corporation of Gloucester, 
 21 Law Journal, Chancery, 81.) 
 
 * In 1S.38, a piece of land was conveyed by deed to A, B., for such uses 
 as he should by deed appoint; and in 1839, he appointed it by deed to cha- 
 ritable uses : but, unhappily, the deed of 1838 was not attested by two wit- 
 nesses, and the deed of 1839 was not enrolled; and so both were void! (At- 
 tomey-Qeneral v. Gardner, 12 Jurist, 67, Vice-Chancellor Knight Biuce.) 
 
 t All other personal estate may be left by will, or given by deed, for any 
 charitable use, as for the use of a Catholic college {Walsh v. Gladstone, 8 
 
 G 
 
82 HISTORY OF THE LAWS OF MORTMAIN. 
 
 shall be made in any other manner than by the act directed, shall be abso- 
 lutely and to all intents and purposes null and void."* 
 
 That is to say, no person can dispose of land or money charged 
 on, or arising out of, or to be laid out in land, by any dispo- 
 sition whatever, to take effect at his death ; nor, except by deed, 
 to take effect immediately, and to be executed twelve months, 
 and to be enrolled six months, before death. 
 
 It can be shewn, from the internal evidence of the act itself, 
 that it is hostile to charity and religion ; and that it is, in this 
 respect, utterly unlike the ancient laws of mortmain, on which 
 it hypocritically pretends to be founded ; and rather resembles 
 the penal popery acts of the period of the Revolution. The 
 mortmain acts, not only professed to be founded purely on politi- 
 cal or economical reasons, but were actually and really construed 
 solely with reference thereto j and were dispensed with, or 
 rather, held satisfied (as already has been shewn) on security 
 being given for compensation in respect of pecuniary losses sus- 
 tained. The act of George II likewise j9>-q/esses to be founded 
 on a purely political or economical reason — the risk of undue 
 influence, disherison of heirs, or accumulation of land. Then, 
 why does it not, in accordance with the ancient laws of mort- 
 main, cease to operate when these political or economical mis- 
 chiefs either do not arise or are remedied; as, for instance, 
 where there are no heirs or near relations, or when they are 
 provided for, or when the'land is turned into money ? None of 
 these cases, however, are provided for ; but, like the popery acts 
 prohibiting papists from possessing lands, it operates, by abso- 
 lutely prohibiting the disposition of land to charitable uses at 
 death, even where there are no relations, or they are duly pro- 
 vided for; and it does not, in such cases, direct that the land 
 shall be sold, and the money only applied to the charity; and 
 
 Jurist, 25) ; or generally upon trust, to be divided among such societies, or 
 apply for such purposes, " having regard to the glory of God in the spiritual 
 welfare of his creatures", as the trustees think fit. (TowmenA v. Cares, 2 
 Hare's Reports, 257 ; 8 Jurist, 104, Vice-Chancellor Wigram.) So a legacy of 
 ^1,500, to be applied by legatee to the use of Roman Catholic priests in and 
 near London, at his discretion, was held valid. {Attorney-Oeneral v. Glad- 
 stone, 13 Simon's Reports, 7.) 
 
 * See 9 George II, c. 36, a.d. 1736. 
 
HISTORY OF THE LAWS Or MORTMAIN. 83 
 
 surely this conclusively shews that the real policy of the act is 
 the discouragement of religion and charity.* 
 
 The act operates equally in all cases of dispositions for cha- 
 ritable uses, whether there be neglect of near relations or not. 
 So that, though a man either have no near relations, or make 
 ample provision for them, he cannot lesive any real property for 
 charitable uses at his death ; and cannot do it even in his life, 
 unless he part with the property at once, and be prepared to. 
 pass through twelve months of suspense and uncertainty as to 
 the disposition taking effect after all (which it will not do if he 
 do not happen to survive that period); added to which, -he has 
 to undergo all the annoyance of enrolment. 
 
 It is not necessary to argue, that the act could not have been 
 vindicated upon any such ground as that suggested in the pre- 
 amble; because, in point of fact, it does not proceed upon that 
 ground; and plain it is, that it cannot have been at all intended 
 to do so; for it applies equally, whether the person be languish- 
 ing or dying or in full health, and whether he have heirs or near 
 relations or not; and whether or not there is persuasion or in- 
 fluence of any kind, due or undue, direct or indirect; and it 
 applies equally in all these cases to dispositions for charitable 
 uses, and to none other. 
 
 Such was the spirit and scope in which this measurq,was passed 
 — a measure exclusively directed against dispositions for charit- 
 able purposes; and thejirst act ever passed for that object. It is 
 plain, the act originated in a feeling against charity — at least, 
 against charity as exhibited in that age. The existence of this 
 
 * The first thing to observe in the act is, that the motiye of the preamble 
 departs from the title. The title proposes only to remedy dispositions of 
 lands, whereby the same became inalienable ; and the motive expressed in 
 the preamble is the prevention of improvident alienations to uses called 
 charitable (implying that they are not charitable), and the consequent dis- 
 herison of lawful heirs. If it were necessary to prevent the disherison of 
 heirs, and the law proscribed only a particular object, it does not prevent 
 disherison, because all other objects are open to the testator. This act, if 
 carried out according to the intention of its makers, and the spirit of the 
 decisions upon it, would prevent any permanent endowment for any iisef id 
 religious or charitable purpose whatever; i.e. except upon a transitory foun- 
 dation, that is to say, funded property : and thus you link every religious or 
 charitable object with the national debt. — Sir F. Palgrave's Evidence, 1844. 
 
 g2 
 
Si HISTOKY OF THE LAWS OT MORTMAIN. 
 
 feeling is shewn by the eagerness with which the judges con- 
 strued the act strictly against charities; contrary to the course 
 taken by the judges in reference to the act of Elizabeth, which 
 they had extended to the utmost, and construed largely and 
 liberally in favour of -charity.* 
 
 Clearly it can be seen, from the cases decided before the act, 
 that no argument could be made Out for any measure to meet 
 peculiar dangers arising as to dispositions by " persons languish- 
 itig and dying" for charitable uses. For the judicature and the 
 legislature had equally attested — the latter, by the silence of 
 seven or eight centuries; the former, by the course and current 
 of their decision — that no danger existed as to such dispositions 
 which did not attach equally to others; and that, on the con- 
 trary, experience proved that persons were not at all neces- 
 sarily less masters of their own will, or open to undue influence, 
 because "languishing and dying"; and that undue influence, 
 when it was exercised, would be more likely to be exerted for 
 selfish ends, than for charitable purposes. And the same con- 
 clusions can be drawn from the cases decided after the act. 
 This, on the one hand, shews that it is not dispositions for 
 charitable piyposes, which are likely to be gained by improper 
 influences; and on the other, that such cases are peculiarly 
 within theiiscope and grasp of ordinary law and equity. The 
 cases decided upon the act clearly shew that it operates against 
 charity, not to protect the testators or provide for relatives. 
 
 How has it worked ? There, at all events, can be no mistake, 
 for it can be plainly proved, by facts, that it has operated (whe- 
 ther intended to do so or not) to the discouragement of religion 
 and charity. Endowments for almshouses, schools, or other 
 
 * The change in the tone of the judges can be detected occasionally for 
 half a century before the, act of Hardwicke passed. Thus Lord Chancellor 
 Cowper observed, in 1747, that he thought the judges had construed the act 
 of Elizabeth too favourably for charity. (^Attorney-General v. Baines, Pro- 
 ceedings in Chancery, 270.) And in 1714, Lord Harcourt overruled a deci- 
 sion of Lord Bacon's, allowing a will void at law to take effect as an appcfint- 
 ment for charitable uses. {Jenner v. Harper, Proceedings in Chancery, 389.) 
 In 1721, the same chancellor wanted to recover a decision of the Charitable 
 Commissioners in favour of a charity ; but the bishops mustered in thte House 
 of Lords, and (on appeal) affirmed their decree. (See article in the Rarnbler.) 
 
HISTORY Of THE LAWS OF MOKTMAIN. 85 
 
 pious purposes were utterly prevented except on the part of 
 very wealthy people, who had land enough and to spare;* and 
 these were precisely the class least disposed to charity, and most 
 exposed to the corrupting influences of that depraved age. And 
 thus the noble and magnificent endowments, in ancient times so 
 frequent, were heard of no more, or only heard of as abortive and 
 frustrated by this act. One of the very first cases, probably the 
 very first, tbat came under the operation of the act, was one 
 which well illustrates its essential hostility to charity, for it was 
 a case in which none of the evils against which the act pretends 
 to be aimed could arise (at all events had the land been sold), 
 and in which, nevertheless, a disastrous public injury was pro- 
 duced by a disgraceful confiscation. It was the celebrated case 
 of Roger Troutbeck, an old sailor who left England in 1719 
 (before the act passed), acquired a large fortune in the East 
 Indies, and returned in 1785. He made a will which ran thus :^- 
 
 " As I have no relation nor kindred alive, to the best of my knowledge or 
 belief, having outlived them all, and whereas it is natural for all men to 
 have a regard for their native place, and where the seeds of their education 
 were first planted ; I therefore bequeath," etc. 
 
 He then left all his property to extend the charity school of 
 Wapping where he was educated when an orphan boy. The 
 property, however, was all confiscated to the Crown hy the order 
 of the Court of Chancery under the act of George II, and was 
 speiit upon the Royal Pavilion at Brighton! Thus the poor at 
 Wapping were deprived of an invaluable religious endowment, 
 which would have had, during the last half century, an immense 
 moral influence upon the population of that part of London, and 
 the money was expended upon a royal folly recently pulled 
 
 * In 1763, a devise of freehold and leasehold property to be sold, and out 
 of the money to buy land and build an almshouse, held void, both as to the 
 buying the land, and building the almshouse. And even a direction that if 
 the devise could not take eflFect for the charitable purpose proposed, the 
 money should be laid out in charitable uses as near to the testator's inten- 
 tions as could be, held void. {Attorney -General v. Tyndall, 1 Bro. 144; 
 Ambler, 614.) In 1743, held that a devise of lands to be sold, and the 
 residue of the proceeds, after paying debts and legacies, to be applied to a 
 charity, void. {Attorney-General v. Lord Weymouth, Ambler, 20.) In 1776, 
 devise of money to clergyman and churchwardens to build a school, held 
 void. {Attorney-General v. Hyde, Ambler, 751.) 
 
86 HISTORY OF THE LAWS OF MORTMAIN. 
 
 down as really too ridiculous and cumbrous. Nor is this all. 
 The sequel of this most instructive case is still more striking. 
 After the money had all been spent by the crown in this foolish 
 way, a distant next of kin appeared, and an enormous litigation 
 ensued with the crown for its recovery; relations so distant, that 
 even all the advertisements issued by the Court of Chancery 
 failed to bring them forward, and there is little doubt that the 
 crown will have to refund all the money after all. The fact 
 that there were relations, so remote, of course, can make no 
 difference as to the character of the act, but, on the contrary, 
 tends to shew more conclusively its impolicy ; for surely no one 
 can contend that a man is bound to provide for relations he has 
 no knowledge of. And the discovery of these distant relations, 
 and the passing of the property to them instead of to the crown, 
 while it equally defeated the charitable disposition, could not be 
 said to have really promoted the professed policy of the act — 
 the protection of heirs from disherison. Many similar cases 
 could be cited, of which some specimens only may be adduced. 
 
 Thus, the Manchester Infirmary, the glory of the town and 
 one of the best hospitals out of the metropolis, was founded in 
 1753 by Sir Oswald Moseley, whose grants reserved rents. 
 The deeds were not enrolled, and the error was not discovered 
 until 1808, when an act of parliament had to be obtained to 
 enable the hospital to hold the lands, and a new conveyance of 
 the lands was made by the then Sir Oswald Moseley, the first 
 heing void hy the statute of George II, by reason of the reserva- 
 tion of rent to the grantor and those who claimed under him.* 
 Of course, such a mischievous measure as this no persons would 
 feel any scruple in evading. And it is curious enough, that the 
 very persons who first evaded it were the dissenters, the very 
 persons whom the author of the act. Lord Hardwicke, had espe- 
 cially in his mind, and against whom he aimed it.f 
 
 It must here be stated, that the " statute of frauds ", passed 
 in the reign of CharlesII,J required that testamentary dispo- 
 
 * Evidence of Mr. Sheapard, Eeport of Mortmain Committee of 1844. 
 
 t See Hardwicke's lAfe, by Harris, in the Appendix to which are his notes 
 of an argument in favour of the measure, with these words: "Under act 
 of Elizabeth, property passes to all religious classes — dissenters." 
 
 t 29 Charles II. 
 
HISTORY or THE LAWS OF MORTMAIN. 87 
 
 sitions or declarations of trust should be in writing signed by 
 the testator. It was held by Lord Hardwicke, in 1744, that 
 there must be a will duly executed, to create a charitable use; 
 and that a trust for a charity could not be declared without a 
 writing duly signed under the statutes of frauds, devises for 
 charitable uses being within both the clauses of that statute as 
 to wills, and as to declarations of trusts ; and notwithstanding 
 there were circumstances which shewed the inclination of the 
 testator to be, that some part of his estate should go to cha- 
 ritable usesj he did not think the evidence arising therefrom 
 certain enough to decree this a trust for charity, as the ad- 
 mitting of such evidence would be breaking in upon the sta- 
 tute of frauds, which had not been repealed by the act of 
 George II.* The effect of this was, that if a declaration of trust 
 was not in writing it was not binding, and a legal trust was not 
 created ; but then, unless it were testamentary or attached to the 
 will, it need not be published or proved, so that a declaration of 
 trust could still be written and signed by the testator, and if 
 not attached to the will, might be kept secret, and would yet 
 create a legal trust. 
 
 In the evidence taken last year before the mortmain com- 
 mittee, Mr. Bates, a conveyancer, says : — 
 
 " I have had occasion to consider the laws of mortmain with respect to 
 secret trusts for charities, to evade the statute of George II, and know the 
 mode practised, particularly among the Methodist connexion. It was this : 
 that the testator should leave his property to trustees, upon trust, to sell 
 and to pay the proceeds to certain pastors whom he should name ; and then 
 he leaves the necessary secret instructions with other parties, which are not 
 to be delivered until after the property is sold ; and then they expect that 
 these parties, knowing that the testator's intention wa^ that they should not 
 take the property themselves, would apply it according to those secret 
 directions." 
 
 This was a system of trusts which the law (if the property had 
 legally been disposed in their favour) would recognize and en- 
 force. 
 
 At the very same period in which the act of George II was 
 thus beginning to operate against dispositions to charitable uses, 
 the cases decided in courts proved how little necessitjr there 
 
 * Adlington v. Cam, 3 Atkins, 141, 
 
88 HISTORY OF THE LAWS OF MORTMAIN. 
 
 could have been for such a measure; by shewing, on the one 
 hand, that they were quite competent to deal with cases of 
 undue influence by the ordinary rules of law ; and, on the other 
 hand, that such influence was exerted not in favour of charity, 
 but of self-interest. 
 
 Thus in 1 757 occurred a case*before Lord Hardwicke, in which 
 a gentleman gave an estate to his footman, who had acquired 
 over him unbounded influence. The gift was set aside, and 
 when thp case came before the Lords Commissioners of the 
 Great Seal by way of appeal. Lord Chief Justice Wilmot, in a 
 very elaborate judgment, thus laid down the rule o^law : 
 
 " The court, where the gift is great, and no reason is given, or the reason 
 given is falsified, and the giver is a weak person liable to be imposed upon, 
 will look upon such gift with a very jealous eye, and strictly examine the 
 conduct of the person in whose favour it is made ; and if it sees that any 
 arts or stratagems, or any undue means have been used, or that the donor is 
 in such a situation with respect to the donee as may naturally give an undue 
 influence over him ; if there be the least intention of fraud, the court will 
 interpose." 
 
 In 1714 occurred a casef illustrating not only the law as to 
 undue influence, but that perversion of religion which had been 
 the cause of the decline of the charity, and the consequent legis- 
 lation against it. The case was one in which — 
 
 " The plaintiff, a lady, filed a bill -against the defendant, a methodist 
 preacher, and other trustees, that a deed of gift executed by her to them, 
 might be delivered up to be cancelled. The bill stated that the defendant 
 procured one Wolfe to send her a letter, in which he expressed himself thus : 
 ' Though unknown to you in the flesh, from the report I have of you, I 
 make bold to address you as s, fellow member of that consecrated body wherein 
 the f Illness of the Gofliead dwells, I have some thoughts of visiting you, to 
 preach the kingdom of God.' She was prevailed upon by Woolfe to invite 
 defendant to her house, where she entertained him for a considerable time, 
 giving him money to defray the expenses of his journey. He afterwards 
 paid her a second visit, when he prevailed upon her to accompany him to 
 town, and become one of his congregation. In the course of two years he 
 obtained from her about £150 by various pretences, and at last persuaded 
 her to execute the deed in question, granting to him an absolute annuity of 
 .£50, secured upon her real estates. The Lord Chancellor (Henley, Earl of 
 Northington) said : ' This cause is the first of the kind that has ever come 
 
 * Bridgeman v. Green, Wilmot's Cases, 14 Vesey. 
 t Norton v. BeiUy, 2 Eden's Reports. 
 
HISTORY OP THE LAWS OF MORTMAIN. 89 
 
 before any court of judicature in this kingdom. In regard to Protestant 
 dissenters, God forbid that they should not be tolerated; but wide is the 
 difference between them and fanatics, whose canting has no other tendency 
 than to plunge their deluded votaries into the abysses of bigotry, despair, 
 and enthusiasm; men, who, in the apostle's language, creep into people's 
 houses, deluding weak women. Shall it be said that the court cannot release 
 against the glaring impostures of these men ? Here is a man, nobody knows 
 who or what he "is; his own counsel have taken much pains to tell me mo- 
 destly what he is not, and depositions have been read to show that he is not 
 a methodist. What is that to me 1 But I can easily tell them, from the 
 proofs and his own letters, what he is : a subtle sectary, who preys upon his 
 deluded hearers, and robs them under the mask of religion. Undoubtedly 
 he hoped, in due time, to secure all her fortune by kindling another flame, 
 of which the female breast is so susceptible ; for the invariable style of his 
 letters is, 'all to be completed by love and reason.' I consider this cause 
 not merely as a private matter, but of public concern. Bigotry and enthu- 
 siasm have spread their banefiil influence among us far and wide ; and the 
 unhappy objects of the contagion daily increase. Of this, not only Bedlam, 
 but most of the private mad-houses are melancholy and striking proofs. 
 The deed was obtained under circumstances of the grossest fraud and impos- 
 ture, and must be delivered up, and he must pay the costs. His counsel 
 tried to shelter him under the denomination of an Independent preacher ; I 
 have tried, in the decree I have made, to spoil his independence.'' " 
 
 The glee and gusto with which the Lord Chancellor exercised 
 his jurisdiction in this case (let it be remarked that he states 
 it was the first case of the kind that had ever occurred in the 
 courts) sufficiently shews that no act of parliament was requisite 
 to provide against undue influence, especially of a spiritual 
 nature. 
 
 At the commencement of the present century (1807) occurred 
 a celebrated case,* of the same description, before Lord Eldon, 
 in which a bill was brought in equity to set aside a deed made 
 by the plaintiff previously to her marriage, under the influence 
 of the Rev, T. Baseley, a clergyman, and by which she conveyed 
 an estate to his own use. Sir Samuel Romily's speech on that 
 occasion is considered to have been very powerful. He stated 
 the rule precisely in the wofds used by Lord Chief Justice Wil- 
 mot in 1757, and said : 
 
 " The rule against undue influence applies to all the variety of relations 
 in which dominion may be exercised by one person over another; and this 
 
 * Hugenin v. Baseleg, 14 Vesey. 
 
90 HISTORY OK THE LAWS OF MORTMAjN. 
 
 case discovers one of a very peculiar nature — influence obtained through the 
 sacred character of a minister of religion. The rule of law guards against 
 the danger of such influence in the cases of guardian and ward, or husband 
 and wife ; and if, in any case, it ought to have any weight, does not the 
 principle apply with infinitely greater force to the present case ? What is 
 the authority of a guardian or a parent, compared with the power of religious 
 impressions under the ascendancy of a spiritual adviser, with such an 
 engine to work upon the passions, to excite superstitious fears or pious 
 hopes, to inspire confidence or despair, to alarm the conscience with the 
 horrors of eternal misery, or support the drooping spirits by unfolding the 
 prospect of eternal happiness ? What are all other means to these 1 Are 
 inferior considerations to have such weight, and is no regard to be given to 
 the most powerful motive that can actuate the human mind V' 
 
 In that case the Chancellor, Lord Eldon, set aside the gift, 
 quite concurred in the doctrine thus laid down, and upheld the 
 rule against undue influence of a spiritual character j so that it 
 follows the act of George II could not have been required to 
 protect testators against such influence. Meanwhile the act 
 continued to operate against the most unexceptionable disposi- 
 tions for charitable purposes. Of a host of cases, one or two 
 may be cited as specimens. 
 
 In 1786, a lady named Oglethorpe left a manor at Fairsted, 
 Essex, to Granville Sharp, her wish being declared to be, that 
 he should convey it to charitable uses. Mr. Sharp offered it to 
 the city of London for an asylum for the encouragement of 
 labour (especially for the benefit of women) ; but the Recorder 
 advised the Corporation not to accept it, in consequence of the 
 statute of George II. Mr. Sharp then offered it to the Bishop 
 of London, for the education of poor negroes in the colonies ; 
 but the bishop was deterred from accepting it by the same 
 objection. Ultimately the heir-at-law recovered it.* 
 
 In 1807 a Mr. Henshaw left £60,000 for the erection of an 
 asylum for the blind, and a school. The will was drawn by pro- 
 fessional gentlemen, directing that the monies should not be 
 applied in purchase of lands or erection of buildings. He died, 
 by his own hand, in 1809. Less than twelve months before, he 
 had, by a codicil, left a piece of land to the building of the 
 school, which, in his will, he said it was his wish should be 
 erected. The will was contested, and was also in suspense until 
 
 * Doe dem. Burdett v. Wright, 2 Bamwall and Alderson, 710. 
 
HISTORY OF THE LAWS OF MORTMAIN. 91 
 
 the public came forward to erect the buildings, which the act of 
 George II did not allow the testator to provide for in his will. 
 This was not done until after twenty years, during all which 
 time the charity was lost to the public. 
 
 In 1813, a lady named Birch left an estate for the relief of 
 widows and orphans. The heir-at-law was absolutely advertised 
 for (he was so utterly unknown to the testatrix), and obtained 
 the estate, which did him no good when he got it, after disput- 
 ing with a host of competing claimants, and after an immense 
 sum had been spent in litigation.* It is of course idle to con- 
 tend that, in such cases as these the pretended policy of the 
 act, the protection of heirs from disherison,- or securing of 
 near relations due provision, is really promoted ; and it is per- 
 fectly impossible to dispute that, practically, the act operates, 
 in a large proportion of instances, as a proscription of charity ; 
 and it is equally impossible to calculate, so far as Protestant 
 charity alone is concerned, the amount of moral good which has 
 been prevented, and the amount of moral mischief which has 
 been produced, by the operation of this act against charitable 
 dispositions ; some idea of which, however, may be arrived at 
 by reflecting on the unquestionable fact, that there cannot be a 
 town in the country in which it has not prevented the founda- 
 tion of some — in all large toyrns, several — charitable and religious 
 institutions, schools, almshouses, or houses in which childhood 
 could have been instructed, poverty relieved, and criminals 
 reclaimed. The cases cited show that persons disposed to endow 
 charities, usually prefer, and often are obliged, to devote landed 
 property, which, for many reasons, is the hest for the purpose ; 
 and the framers of the act were well aware the Protestant 
 religion is not Kfilikely to inspire people with that spirit of self- 
 sacrifice which alone can lead men to give up in their lifetime 
 property, the loss of which will entail poverty, — the spirit of the 
 rehgious orders, which Protestantism disavowed, and the spirit 
 that founded and endowed the religious houses, — which Protest- 
 antism destroyed. Practically, therefore, the act has operated, so 
 far as Protestants were concerned, to prevent charitable endow- 
 ments, except on the part of persons very rich and also (a union 
 of qualities rather rare) very charitable. 
 
 * Evidence of Mr. Hadfield, Report of Committee of 1844. 
 
92 HISTORY OF THE LAWS OF MORTMAIN. 
 
 Originally the act couldj of course^ have no application to 
 .Catholics, as they were, at the time it passed, prevented from 
 possessing lands for any purpose by the anti-popery act of Wil- 
 liam III. That act was not repealed till 1778, and then there 
 remained in force the penal laws, which rendered any charitable 
 dispositions for popish purposes Utterly illegal, and which were 
 not repealed until 1829 ; and even then a new enactment against 
 religious orders was inserted in the measure of " emancipation", 
 and the statute of superstitious uses was retained, and has 
 recently received an interpretation more. rigid than ever;* and 
 it was not until 1831 that land was allowed to be devoted to 
 the CathoHc religious purposes.f Of course, while the penal 
 laws existed, it was utterly— and even since they have been 
 .repealed, partially — impossible, with safety, openly to dispose of 
 property for such purposes. Now the act of George II required 
 disposition by deed, and enrolment of the deed, which would 
 entail pubhcation of the purposes to which the property would 
 be applicable, and would, in the case of Catholic endowments, 
 be equivalent to an invitation of confiscation. Hence it was 
 impossible for Catholics to make charitable dispositions in con- 
 formity with the act, and they were therefore driven to make 
 them otherwise; and so to make them secretly. Hence arose 
 secret trusts, — as some improperly call them, — or rather, as they 
 are legally and properly termed, spiritual trusts, being such as 
 are not trusts in law at all, any more than was the case with 
 lands granted to religious houses of old.J Accordingly they 
 had to avoid the creation of any legal trusts at aU ; and a wit- 
 ness before the Committee of Wills thus stated how they acted : 
 
 " Almost all the restrictions enforced by this law are evaded with the 
 . greatest ease. I am aware, in my own practice, of many cases in which they 
 have been evaded, particularly in the case of devises for purposes connected 
 with the Roman Catholic Church in this country ; such things have beeh 
 common, and there are several cases now pending in the courts, in which 
 very large gifts and devises have been notoriously made for the purpose of 
 benefiting charities. But they are evaded by the devise being made to some 
 public oflScer of a charity (to the bishop, or some other person), who knows 
 
 * See the case of West v. Shuttleworth, 2 Mylue and Keen. 
 
 t By the act 1 and 2 William IV, commonly called O'Connell's act. 
 
 X See note ante. 
 
HISTORY or THE LAWS OF MGRTMAIST. 9S 
 
 very well that it is meant for charitable purposes when he gels it, though 
 the intention to make the gift never perhaps was communicated to him by 
 the testator in his lifetime ; he is very well aware that they are left for some 
 general purpose connected with the charity ; and not> being upon any ex-- 
 press trust, nor any contract arising, there being no contract respecting it 
 between the testator and the devisee in the testator's lifetime, it is a good 
 devise. There is a case arising out of the will of Mr. Blundell, of Ince, in 
 which there was a very large bequest of personal estate to a clergyman of 
 the Roman Catholic Church, without any trust therewith ; yet it is quite 
 notorious that it was for charitable objects connected with the endowment of 
 the Roman Catholic religion in this country. There is also in his will a 
 devise of an estate to a Roman Catholic priest, of which it was well known 
 that he himself was a trustee, but with no written or express trust. He 
 devised it again without any trust at all, trusting to the honour of the de- 
 visee duly to carry out the object. Traditionally, no doubt, among them- 
 selves, the Roman Catholics knew it ought to be devoted to the maintenance 
 of the priests, or to some purpose of that kind. I have known several other 
 instances be advised a client who wished to leave land for the education of 
 poor Catholics in Manchester, to leave it absolutely to a priest, or otherwise 
 it would be void under the statute. He did so, and the clergyman of course 
 bad uncontrolled discretion over the application of the property."* 
 
 These are properly and purely spiritual trustsj i. e. they are' 
 not, legally speaking, trusts at allj therefore they are not 
 " secret trusts," their very essence is in the absence of any legal 
 trust (the creation of which was studiously avoided), and in the 
 existence of, and entire dependence on, religious obligation, so 
 they are not legal: they are spiritual, and although they are 
 secret, they are not secret trusts. 
 
 Of course, under such a system of evasion, the operation of 
 the act was not to prevent the acquisition of real property by 
 charities, but to render the acquisition of it secret; and practi- 
 cally, both as to Protestants and Catholics, to deprive the cha- 
 rities of the protection of the law; with respect to the former, 
 by reason that the trusts created could not be disclosed, and of 
 course could not be enforced; with respect to the latter, by 
 reason that no trusts at all were created, and therefore there 
 was nothing which, even if legal, the law could enforce. How 
 far this is an evil, must depend upon the degree in which a sense 
 of religious obligation prevails and operates among any one 
 portion of the community or another ; and, from the evidence 
 
 * Mr. Gibson's evidence, Report of 1844. 
 
94 HISTORY OF THE LAWS OF MOETMAIN. 
 
 already adduced^ it is pretty plain that in the Catholic commu- 
 nity, the sense of religious obligation is so strong, that no evil 
 or inconvenience seems (at least to any serious extent) to have 
 been experienced in this respect. StiU it seems sufficient to 
 impeach the policy of the law, that, not only it is easily evaded, 
 but that its practical operation is simply to deprive charitable 
 dispositions of the protection of the law.* 
 
 This appears to have been, during the last half century, more 
 an injury to Protestant than to Catholic charity so far as the 
 direct operation of the act is concerned, for two reasons : — first, 
 because the sense of religious obligation (as it has been stated 
 by a Protestant witness) is so strong among Catholics, especially 
 as to what respects religion, that very few even of those who 
 are not very pious, would be guilty of a breach of trust in regard 
 thereto: and, secondly, because the spirit of the Catholic re- 
 ligion is so favourable to charity, and so clearly marks it out as 
 involving an act of self-sacrifice on the part of the giver ; and 
 therefore properly exercised by the living rather than the dying, 
 that (though doubtless. Catholics partake in some degree, in 
 this country, of that love of money which characterizes it), they 
 are less likely to drive ofi" the duty of charity till a death-bed. 
 It has been seen, that all the old Catholic foundations were by 
 
 * The shallow observation sometimes made by superficial reasoners on the 
 subject, that if the law be easily evaded it at least does no harm, is answered 
 by the circumstance that, though easily evaded in cases where a testator 
 can rely on a sense of honour or religious obligation, it is not to be evaded 
 in cases were he cannot (or will not) rely upon this : and further, that where 
 it is so evaded, the law operates impolitically and injuriously in one way, if 
 not in another. Moreover, in many cases, where the law is not evaded, it is 
 not observed ; and by reason of the accidental omission of some of- the statut- 
 able regulations, or by death before the lapse of twelve months, the cha- 
 ritable disposition is defeated. Added to which, many are deterred by these 
 difficulties from attempting any charitable disposition at all ; so that the 
 number of charitable dispositions defeated affords no test of the number ^re- 
 vented, any more than the number of cases reported represents the number 
 which have actually occxurred. The law operates not the less fatally, because 
 it does its deadly work in silence and secresy. The provisions are of course 
 generally in some degree known ; and thousands of testators do not attempt 
 to do what they dread may not succeed. So hundreds of cases in which 
 they have attempted it do not come into court, because it is clear they have 
 not succeeded, and confiscation quietly ensues. 
 
HISTORY OF THE LAWS OF MORTMAIN. 95 
 
 grants of those who gave up their property while in full health; 
 the same religion influences the Catholics of the present day, 
 and the act against dispositions of property to charitable uses hy 
 languishing and dying persons, ought to have little effect so far 
 as they are concerned, except for some special reasons ; as that 
 there is a larger proportion of poverty in the Catholic com- 
 munity in this country; and that they were, until almost within 
 living memory, disabled from possessing landed property. There 
 is, however, surely a peculiar injustice in maintaining, under 
 such circumstances, such a law against the professors of the 
 ancient faith; if only because it led to the foundation of such 
 innumerable churches, cathedrals, colleges, almshouses, hos- 
 pitals, and schools, which either are now possessed by its oppo- 
 nents or have long since been subjected to spoliation and sup- 
 pression. And there can scarcely be any real reason for retaining 
 such a law as respects them, for either of the two reasons usually 
 urged in its support — the protection of relatives, or the fear of 
 undue influence — seeing that the Catholic religion supplies such 
 effectual security. Strange to say, however, there has arisen, by 
 reason of the mendacious misrepresentations propagated by such 
 writers as Blackstone — an idea that an act against testamentary 
 dispositions for pious purposes is peculiarly required for the pro- 
 tection of Catholics. It appears extraordinary, that such an 
 idea should prevail, except by reason of ignorance of history, 
 inasmuch as death-bed dispositions for pious purposes are pecu- 
 liarly, as we have seen, the growth of Protestantism. And 
 almost all the ancient Catholic foundations were endowed by 
 gifts of the living and not by last will. It is to be remarked 
 here, that it is only this modern law against testamentary dis- 
 positions for pious purposes that could practically affect Catholics 
 on this subject ; seeing that there would be difficulty in holding 
 a religious house erected at the present day a corporation,* and 
 
 * A difficulty not arising, as it is believed, by reason of religious houses 
 being illegal, not recognized by law (for it is conceived that they are as 
 legal as ever, and are recognized as legal by the very statutes which sup- 
 pressed those existing at the Reformation) ; but a difficulty arising on the 
 question, what constitutes a corporation ?- -whether the very erection of a 
 religious house constitutes it a corporation, or whether, as in ordinary cases, 
 a charter of incorporation is requisite ? 
 
96 HISTORY OF THE LAWS OF MORTMAIN. 
 
 if it were, it could not take land without the license of the crown. 
 The modern law against charitable devises, has a peculiar opera-, 
 tion as respects Catholics, not only for the reason already alluded 
 to, the requisition of enrolment as connected with the law of 
 superstitious uses, but another reason arising out of this — the 
 system of secret spiritual trusts as connected with the statute 
 on the one hand, and the principles applied by courts of law as 
 to absolute bequests on the other. 
 
 It has been seen, that the effect of the law of superstitious 
 uses is to prevent enrolment under the act as to charitable testa- 
 mentary dispositions, and the result has been a system under 
 which the property is left absolutely to an individual ; but with 
 a secret trust not legal but spiritual. And it has also been seen 
 that one of the tests by which the courts ascertain whether a 
 bequest to a person, absolutely and apparently for his own benefit, 
 has been obtained under undue influence, is, whether it be 
 disproportionately large, or without apparent reason. It is plain 
 that this places this class of Catholic bequests in great difficulty, 
 seeing that on the face of the will there is a bequest " dispropor- 
 tionately large", and without " apparent reason", assuming it to 
 be (as apparently it is, being in absolute terms) for the devisee's 
 own benefit; the real reason it being impossible to declare, con- 
 stituting, as it does, the secret trust. Hence the Catholic devisee, 
 under such circumstances, is put in a dilemma, — that if the 
 bequest be for his behefi,t, it looks as if it had been obtained by 
 undue influence ; and if for the testator's benefit, on a secret 
 spiritual trust, the law impiously calls it superstitious, and con- 
 fiscates it. And this difficulty applies equally to bequests of 
 personalty for uses so called superstitious, as to devisees of realty 
 for very charitable purposes. This is a difficulty in which, as 
 will be seen, when Catholic bequests began to come before the 
 courts, or committees of the House of Commons, a very disin- 
 genuous advantage was taken, as will soon be seen. 
 
 It should be observed here, that so long ago as 1803, an act 
 had passed to dispense with the act of George II, in a certain 
 degree, so far as the Established Church was concerned, in fa- 
 vour of building of churches ; and in 1815, the first of a series of 
 acts passed, creating exemptions in favour of sites for schools. 
 But although in 1831 the act of William IV, already alluded 
 to, recited — « 
 
HISTORY or THE LAWS OF MOllTMAIN. 97 
 
 " That it is expedient to'remove all doubts respecting the right of Roman 
 Catholic subjects to acquire and hold property necessary for religious wor- 
 ship, education, and charitable purposes." 
 
 This act does not in any degree dispense with the act of George 
 IIj and only enables Catholics to " acquire and hold" property 
 for these purposes according to its provisions. 
 
 The Established Church had always opposed the act of George 
 II, and had long been anxious for its repeal ; but then, by rea- 
 son of the toleration acts, the Dissenters and Catholics would 
 equally have the benefit of such measure, and the majority of 
 the members of the Establishment would probably prefer re- 
 maining under restrictions themselves to relieving Catholics 
 from it, though, as already observed, it was not originally applic- 
 able to them all, and has an accidental application never in- 
 tended. Hence the difficulty has long been, how to relieve the 
 Establishment from it without relieving the Catholics, or impos- 
 ing some exceptional restriction upon them. 
 
 In 1791,* an act passed repealing the penal enactments 
 against " popish recusants", but with a proviso — 
 
 " That all dispositions of property before deemed to be superstitious or 
 U'fdawful, should continue so." 
 
 And this left Catholic charitable bequests not only liable to the 
 act of George I, if pertaining to realty, but also subject to the 
 statute of Edward VI as to superstitious uses. It need scarcely 
 be said that while the statute exists, the laws of Edward I as to 
 mortmain must, as to Catholic religious houses (and none other 
 are likely long to exist) be obsolete. Under this state of the 
 law it was, however, held in 1793,t by Sir W. Grant, that a 
 bequest for the purpose of bringing up poor children in the 
 Catholic faith was void, as " contrary to the policy of the law"; 
 a decision admitted by such Protestant lawyers as the late Lord 
 Langdale and Mr. Bethell, to be at least douhtful,X and which 
 Catholics, perhaps, might pronounce as detestable.^ 
 
 In 1835 occurred a case very illustrative of the difiiculties 
 
 * 31 George III, c. 32. t Gary v. Abbott, 7 Vesey. 
 
 X There was not the least pretext for it : and if such a man as Sir W. 
 Grant was thus led astray by prejudice against Popery, what must be its 
 power on inferior minds ? 
 
 § See. observations on it in \Yest v. Shuttleu-orth, 2 M. and K. 669. 
 
98 HISTORY or THE LAWS OF MORTMAIN. 
 
 which beset Catholic religious bequests, and of the disingenuous 
 manner in which the courts place them in a dilemma between 
 " superstitious" on the one hand, and " undue influence" on the 
 other. The facts, as stated in the Report,* were as follow : — 
 
 " Margaret Townsend by her will, 25 Jan. 18l4,t bequeathed the residue 
 of her estate and effects to Sir H. Lawson and Simon Scrope, Esq., appoint- 
 ing Shuttleworth and two others as her executors. On the same day she 
 wrote and signed the following testamentary paper : — ' Omitted in my will, 
 chapels and priests : to the chapel of St. George, London Road, ^10 ; St. 
 Patrick's Chapel, Sutton Street, ^10, etc. etc. Whatever I have -left to 
 priests or chapels, it is my wish and desire that the sums may be paid as 
 soon as possible, that I may have the benefit of their prayers and masses.' 
 On the same day, testatrix addressed a letter to Sir H. lawson and Mr. 
 Scroop, which, after her- death, was found enclosed in her wUl, and was in 
 these terms : ' Gentlemen, I have herewith sent a duplicate of my will, 
 whereby you will perceive that I have bequeathed the residue of my property 
 to you, in confidence that you will appropriate the same in the manner most 
 consonant to my wishes, which are as follows : that the sum of ^10 each be 
 given to the ministers of St. George's, etc. etc., for the benefif of their 
 prayers for the repose of my soul, and that the remainder be appropriated 
 by you in such a way as you may judge best calculated to promote the 
 knowledge of the Catholic religion among the poor and ignorant inhabitants 
 of Swaledale, in the county of York.' The will, and the jwst testamentary 
 paper, were proved by the executors in 1815 ; but the letter to the trustees 
 was not proved as a testamentary paper until 1834, after this suit com- 
 menced, which was brought by the next of kin, to set aside the bequest of 
 the residue, upon the ground that it was charitable or religious ; and that 
 the residue arose out of real estate. The Master's Report found that out of 
 £2,913, the amount of the residue, £2,429 arose from personal estate con- 
 nected with reality, and £424 from ' pure' personality. Mr. Bickersteth (the 
 late lord Langdale) and Mr. Bethel, plaintiff's counsel, urged at the argu- 
 ment that, not only the larger sum must be decreed to the plaintiff, by rea- 
 son of the statute of George II against testamentary dispositions of real pro- 
 perty for charitable purposes, but the smaller sum also, because the bequest 
 was for 'superstitious uses', i.e. for masses: and they contended further, 
 that as this was not at all charitable, but for the testator's own benefit (for 
 the sake of the repose of her soul), the court could not even commute it to 
 some use not ' superstitious', but that it must pass to^ the next of kin with 
 the rest.t The Master of the Rolls (the late Lord Cottenham) held that 
 
 * West v. Shuttleworth, 2 Mylne and Keen's Reports. 
 
 t The act of William IV, allowing property to be acquired for Catholic 
 spiritual purposes {not "superstitious"), had a retrospective operation.^ 
 Bradshaw v. Tasher, 2 Mylne and Keen. 
 
 :|: Of course as to the larger sum, arising out of reality, the statute of 
 
HISTORY OF THE LAWS OP MORTMAIN. 99 
 
 the bequests to priests were void, as superstitious ; but that the bequest of 
 the residue to the instruction of the poor in the Catholic religion was valid, 
 by the act of William IV : ' Taking the first gift to priests in connection 
 with the latter, there can be no doubt that the sums given to priests and 
 chapels were not intended for the benefit of the priests personally (!), or for the 
 support of the chapels for general purposes ; but that they were given, as 
 expressed in the Itrtter, for the benefit of their prayers for the repose of the 
 testator's soul ; and though there is no statute making superstitious uses 
 void generally, and the statute of Edward VI relates oiHy to those of a par- 
 ticular description then existing, and does not declare any such gifts to be 
 unlawful, but certain gifts personally made; and though, therefore, the 
 legacies in question are not within the terms of the statute, it has been con- 
 sidered as establishing the illegality of legacies to priests to pray for the soul 
 of the donor ; and therefore these legacies are void. And as they are void 
 because illegal, and there was nothing of charity in their ohject{\), and their 
 intention was not to benefit the priests, or to support the chapel, but to secure 
 a supposed benefit to the testatrix herself, the Crown- cannot apply them to 
 charity, and the next of kin are entitled.' " 
 
 There is such gross injustice in this case that it seems scarcely 
 necessary to naention that it has been considered unsatisfactory 
 even among the Protestant portion of the profession. First, a 
 statute was held to confiscate legacies not within its terms ; 
 next, it was held that legacies left absolutely to priests, were 
 not for their benefit, merely because testator hoped that she 
 might have the benefit of their prayers, — (as if hoth objects were 
 not clearly contemplated by the testator) ; and then that a letter 
 intimating any expectation or hope, although the bequests were 
 absolute in terms, made a trust.* And thus the trustees and 
 executors had to refund, twenty years after the Will had been 
 executed, and the estate administered. The practical result of 
 the case was to show that it still would be unsafe, notwithstand- 
 ing the statute of William IV, to leave even money or pure 
 personalty to any priest or chapel, if any paper be " proved" (as 
 testamentary, or part of the will) which indicates a desire, or 
 intention, for masses. The necessary consequence, of course, 
 was, that such bequests had to be left, not only in terms abso- 
 lute, as if for the legatee's benefit, but without any such paper 
 intimating expectation or intention ; and thus this placed the 
 
 George II was clear ; and the contest was only as to the smaller sum, arising 
 out of pure personality. 
 
 * Contrary, it is conceived, to the cases. 
 
 H 3 
 
100 HISTORY OF THE LAWS OF MORTMAIN. 
 
 legatee, especially if a priest, in a position quite as difficult, and 
 perhaps more disagreeable, of being suspected of exercising 
 "undue influence" for his own benefit. This will be amply illus- 
 trated in a subsequent case. 
 
 In 1841 a case came before the court of equity, which, doubt- 
 less, tended at once to increase the disposition for (by disclosing 
 to what an extent the law failed to fetter Catholic charity), and 
 to encourage the hope of furnishing a case in favour of, some 
 exceptional legislation, and which was afterwards eagerly laid 
 hold of for that purpose. The facts are thus stated in the report :* 
 
 " The plaintiffs, Mrs. Middleton and Mrs. Eastwood, were nieces and co- 
 heiresses of William Heatley, who died 21 July 1840. Thomas Sherborne, the 
 defendant, was a Catholic priest, who claimed as devisee of part of the real 
 estates, and residuary legatee's devisee. The plaintiffs lived with Heatley 
 till 1818, when his mother died, and they left. In the meantime Mr. Sher- 
 borne became his confessor; but from 1822 to 1835 was abroad. During 
 that interval, in 1824, Heatley imade a will, devising to Sherborne all his 
 property, with the exception of two legacies of £6,000 each to the plaintiffs, 
 the nieces. The will was delivered to Sherborne in 1825, and he kept it 
 until after Heatley's death. In 1829, Heatley made a will, devising the 
 Brindle estate to the plaintiffs during their lives, and remainder to their 
 children ; and he devised the rest of his property to Mr. Sherborne. By a 
 codicil of 1835, in Mr. Sherborne's writing, Heatley left a piece of land to 
 plaintiffs; iu 1836, by another codicil, partly in Mr. Sherborne's hand, 
 Heatley gave a farm and other property to plaintiffs ; and it contained this 
 passage : ' As it is probable that the circumstance of my having given a con- 
 siderable part of my property to the Rev. Mr. Sherborne, may give dissatis- 
 faction to my nieces and their husbandt, who have expressed themselves to 
 the effect that they h/nd a moral right to the whole after Tiny death, — in order 
 to prevent any vexatious proceedings, I direct that they do confirm the wUl 
 within twelve months after my death, or in defalt thereof, I revoke the de- 
 vises of the estates made to my nieces, and devise the same to Mr. Sherborne.' 
 It was represented that, as confessor, Mr. Sherborne had ' spiritual influence' 
 over the testator, and that as he was constantly at prayer in the chapel, he 
 was under ' superstitious terrors'. An estate had been purchased by Mr. 
 Heatley, and conveyed to Mr. Sherborne, Mr. Heatley remaining in posses- 
 sion of the rents and profits up to his death.t Another estate was purchased 
 
 * Middleton v. Sherborn, 4 Y. and C. 
 
 + The result of the will was, that about £600 a-year was left to the next 
 of kin, with a house valued at £20,000, which, at 5 per cent., would make 
 about £1,600 a-year ; and the testator stated that this was about the income 
 he had received from his father, and that he had a right to dispose of the 
 rest as he pleased. The residue, left to Mr. Sherborne, did not exceed £600 
 
HISTOEY OF THE LAWS OF MORTMAIN. 101 
 
 ~ '^" / ^'" 
 
 by Mr. Sherborne for £9,000, he having personally received £10,000 "from 
 
 Mr. Heatley, for which interest was paid during his life, he remaining also 
 in possession of the estate, and receiving the rents and profits.* The bill 
 prayed that there might be an issue at law to try the validity of the will ; 
 and, if deemed valid, that the conveyances or devises might be declared to 
 be on secret trusts for charitable, religious, or superstitious uses, connected 
 with the Roman Catholic religion, and so void, either as not being enrolled 
 under the act of George II, or as being superstitious, under the act of Ed- 
 ward VI. And a motion for a receiver was made." 
 
 It is not easy to see on what grounds, consistent with the 
 rights of property, such a s\iit could be sustained upon the score 
 of '^ undue influence"; but the late Lord Abinger did his utmost 
 to sustain it even upon that ground, although to do so it was 
 requisite somewhat to warp the law j and a gradual tendency to 
 do so can be detected in his observations. In the early part 
 of the argument the Lord Chief Baron said : 
 
 " Every man makes his will under some influence. In the case of General 
 Torke, who left his property to his groom, Mr. Justice Chambre, who tried 
 the cause, and was the best lawyer of his day, said he hardly knew what 
 ' undue influence' was. The jury found for the defendant (devisee), and the 
 jyerdict was confirmed. Again, in Lord Prinlestown's case, it was said. that 
 the will had been obtained by his wife's influence, and the jury found a 
 verdict for the will ; but the verdict was set aside in the House of Lords. 
 Certainly a confessor has the highest species of influence, and it mai/he 
 fraudulently used." 
 
 It is plain that the first and fairest inclination of the Lord Chief 
 Baron's mind was against any such ground of suit in the pre- 
 sent instance ; but he afterwards took up an idea with which 
 the counsel for the plaintiffs supplied him : 
 
 "We consider that the influence is what Lord Hardwicke called good influ- 
 ence unfairly used." 
 
 a-year. In 1840, the testator died ; and Mr. Eastwood, not satisfied with 
 his large share of the property, disputed the wiU, and these proceedings took 
 place at law and eq^uity. 
 
 * It is plain that both these transactions were evasions of the act of 
 George II, which precluded testator from conveying an estate, reserving a 
 life interest, or from bequeathing money to be laid out in land, or from be- 
 queathing land to be turned into money. The object was, to preserve Mr. 
 Heatley the enjoyment of his property during his life, and to pass it to pious 
 uses at his death. There could be nothing unfair in this, as his nieces had 
 £10,000 each in their own right, and he had left them property worth 
 £6,000 each. 
 
103 HISTORY OF THE LAWS OF MORTMAIN. 
 
 The Lord'Chief Baron, in giving judgmentj said : 
 
 " I do not think that mere influence is enough, to set aside a will. All 
 wills are made under some kind of influence : the influence of afiection or 
 attachment, which, is perfectly legitimate. If a man makes a will under that 
 influence, and excludes his own family, and gives his estate to a stranger, I 
 do not apprehend that such a will could be displaced at law or equity. The 
 question, therefore, is, as to the degree of influence. It must be such a degree 
 of influence as deprives the testator of being the proper master of his own 
 faculties. I can easily conceive a case of a man of very strong mind being 
 under the influence of such a superstitious terror or delusion, as that he 
 might think it necessary to his salvation that he should give all his money 
 to his priest or confessor. If that were clearly established, I think, and a 
 jury found such a degree of delusion as to deprive the man of the exercise 
 of Ms free judgment in what he was doing, it should be suflSicient to destroy 
 the wUl. Mr. Sherborne was the confessor of Mr. Heatley ; but he was more : 
 he had great control over all his afiairs. These are circumstances requiring 
 consideration ; and if they show that the will or codicils were made under 
 that degree of delusion or terror which, in the opinion of a jury, might con- 
 stitute a want of real capability to judge what he was abtfut, then the will 
 and codicils would be void." 
 
 There the lord chief baron takes a disingenuous disadvantage 
 of the dilemma in which the law against Caltholic bequests 
 places a Catholic priest, in the position of Mr. Sherburne : the 
 dilemma, either of claiming the legacy as for his personal benefit 
 or for Catholic purposes. In the latter case, the law confiscates 
 the legacy as superstitious; in the former, the courts consider 
 the largeness of the legacy unaccounted for, and so an evidence 
 of " undue influence." But it will be observed, that Lord 
 Abinger, in stating the rule of the courts of law on the subject, 
 states it, not only as against Catholics, more strongly than the 
 terms in which it had been stated a century before as regards 
 Protestants : but states it in such terms as almost to render im- 
 possible, upon a Protestant construction, to support any Ca- 
 tholic bequest. The principle, as laid down in the old authorities, 
 was, that undue influence was fraudulent, or such as was exer- 
 cised under circumstances which deprived a person of the power 
 of knowing what he was doing : but Lord Abinger declares, that 
 if a Catholic priest thought himself bound to tell his penitent 
 his duty was to leave some property for pious purposes, and the 
 only way of doing this, according to law, was to leave it abso- 
 lutely to himself, or some priest on, the secret understanding 
 
HISTORY OP THE LAWS OP MORTMAIN. 103 
 
 that it should be devoted to spiritual purposeSj but in terms and 
 in legal effect absolutely to his own use, this would be adequate 
 evidence of undue influence, although the penitent not only 
 knew perfectly well what he was about, but also was as well 
 acquainted with the principles and moral teaching of his Church, 
 or the proper province of a priest, as the priest himself; and 
 perfectly well knew, that the direction he had received was in 
 conformity therewith. The fallacy of this definition of Lord 
 Abinger appears flagrant, of confounding what is unaccountable, 
 or absurd, or superstitious, upon a Protestant construction of a 
 bequest (made also under compulsion and pressure of a certain 
 penal law preventing a full disclosure of its purpose), and a 
 Catholic construction of it. Surely, as the penitent in such 
 cases is a Catholic, his bequest should be construed upon 
 Catholic principles; and, according to the Catholic religion, 
 such a bequest would be (under certain circumstances of which 
 the penitent and priest would judge) perfectly proper ; and if so, 
 how can it be undue influence to recommend a testator to act 
 in conformity with his own religion; or how can it be other- 
 wise than robbery and tyranny, under a mask of law, for a court 
 to say, "We, as Protestants, consider this as imposition be- 
 cause we do not believe in the sacrament of penance, the duty 
 of charity, the doctrine of restitution, or the authority of a 
 priest." The obvious answer is, the penitent does ; and his be- 
 quest is to, be considered sahe regarded it; and to prevent it 
 from taking effect because you deem it superstition and impo- 
 sition, is to proscribe the Catholic religion. 
 
 It is conceived then, that this case shews that the only rea- 
 sonable rule to be laid down under the present state of the law 
 as to Catholic bequests is, that the influence of a priest cannot 
 be considered undue, even if apparently exercised to obtain a 
 bequest in legal effect absolutely for his own benefit, and still 
 less, if avowedly in trust for a spiritual purpose, if this influence 
 be only exercised in conformity with the Catholic religion, for 
 otherwise that religion ceases to be recognized or tolerated by 
 law. 
 
 The result was, that the cause was sent to trial first, on the 
 validity of the will. It came on before Mr, Baron Eolfe, who 
 said : — 
 
104 HISTORY OF THE LAWS OF MORTMAIN. 
 
 " It appears to me that, if this will were to be impeached on the principle 
 that this gentleman was not competent to make a will, it wovld shake our 
 confidence in any will." 
 
 Mr. Creswell (the present Mr. Justice Creswell) was counsel 
 for Mr. Sherborne: and, after his address, and the examination 
 of evidence. Sir W. FoUett, counsel for the heir, proposed to give 
 up, saying:— 
 
 " The evidence that has been offered here, and the inquiries that have 
 been made, have satisfied them that Mr. Heatley, at the time he made the will 
 and codicils, was competent to make them; and that there was no foundation 
 for the proceedings which have been taken in equity." 
 
 A compromise, however, was agreed to; because, although 
 the validity of the will was established, there were other ques- 
 tions as to the statute of George II and the statutes of super- 
 stitious uses.* But all pretence of impeaching the transaction 
 on the score of undue influence was scouted. 
 
 Not long^ after this case had so remarkably illustrated the 
 state of the law, and the position in which it placed Catholics, 
 the subject came before the House of Commons j Lord J. Man- 
 ners moved a resolution : — 
 
 " That it is inexpedient, in the present condition of the country, to con- 
 tinue the existing restrictions on the exercise of private charity and muni- 
 ficence." 
 
 The terms of the resolutions were vague and weakj and 
 capable of being construed as comprising the mortmain laws, 
 which, it appears, could only apply to the Established Church; 
 and could only, practically, be applicable to endowments in aid 
 
 * The property was left to Mr. Sherborne absolutely ; but there was a 
 spiritual wUl, or secret instructions, as follows : — " To enable Dr. Youens to 
 discharge the bequests mentioned herein, I shall devise funds to be placed 
 at his disposal. [Then followed a list of legacies, including £20 to Mr. 
 Sherborne.] All the money received by Dr. Youens from my effects, over 
 and above discharging my bequests, I wish to be applied to the education 
 of youth for the Catholic universities, to aid in promoting schools in the 
 country attached to chapels, and to any other purpose he may think best. I 
 wish the rents arising from the estate in Carleton, which I purchased, but 
 which was conveyed to others, to prevent my relatives from having any 
 control over it, to be applied thus : ^100 of the rent for masses, etc. ; the 
 remainder to be at the disposal of Dr. Youens, to enable him .to comply with 
 my directions." 
 
HISTORY OP THE LAWS OF MORTMAIN. 105 
 
 of benefices. For it appears more than questionable, wbether 
 a Protestant religious house is a corporation; and, as to 
 Catholic religious houses, the law appeared to proscribe them.* 
 The noble lord, however, in his speech as in his motion, mixed 
 up the question of mortmain and religious houses. He spoke 
 truth at all events : — 
 
 " Let them look to England and see if no fresh encouragements to charity, 
 religion, and devotion were required. Schools, hospitals, churches, cathedrals 
 were wanted ; and in his opinion something more — religious houses. He 
 never could believe that the teeming millions of our agricultural and manu- 
 facturing districts could be brought within the pale of Christian civilization 
 without the establishment of_ some sort of monastic institutions. Call them by 
 what name you like, but if the poor, the ignorant, and uncared for, who are 
 now suffering the extremes of want and ignorance, are to be taught their 
 privileges and duties here, and are to have bright hopes of happiness here- 
 after, such means must he resorted <o.t He thought with Mr. Paget that, ' if 
 monasteries, instead of being swept away, had been reformed, if it had been 
 reserved for persons not tied by monastic vows, but who, satisfied to endure 
 harshness and content with* poverty, were ready, from the pure love of God, 
 to devote themselves to preaching, study, and prayer ; our large towns 
 would have been supplied, not as now, with three or four over -burdened 
 clergymen, but with a numerous body of men ready, under episcopal guid- 
 ance, to do the work of evangelists to multitudes now lying in darkness and 
 the shadow of death'." 
 
 Although all this, of course, was true enough, yet it was ill- 
 timed and destructive of the motion. It made the house con- 
 ceive the question at issue was the revival of religious houses, 
 whereas it was simply the repeal of the act of George II against 
 charitable dispositions testamentary, or to take effect at death. 
 The act of George II he characterized as a law for the effectual 
 hindrance of faith and charity. He said : — 
 
 " The circumstances of the country at the time it passed were very differ- 
 ent from what they were now, when six millions of persons were beyond 
 the pale of the church (in England), and more than a million were dependent 
 for existence on the poor-law." 
 
 Adverting to the cant and worn-out objections against per- 
 petuity, he said : — 
 
 " How could it be pretended, that the fact of a trader being permitted 
 
 * See case cited in Appendix as to Catholic sees, which would of course at 
 common law constitute corporations. See the Titles Act, and the writer's, 
 pamphlet on the Catholic Hierarchy. 
 
 t A large number of the best clergy of the Established Church concur in 
 this opinion. 
 
106 HISTORY OF THE LAWS OF MORTMAIN. 
 
 to leave his wealth, or the land in which he had invested it, to pious purposes, 
 would indispose him or others to enterprise. Dismissing these topics as un- 
 worthy of serious consideration, he came to those upon whiih he apprehended 
 there would be the principal opposition to his motion. It would be said, 
 that if the mortmain laws were relaxed in favour of the Church of England, 
 they must also be relaxed in favour of the Roman Catholics and dissenters. 
 He at once would frankly avow, that he denied this to be any objection. 
 The Roman Catholics and dissenters had been placed upon a footing of 
 political equality; and why not with reference to this subject. He was pre- 
 pared to allow Roman Catholics to build and endow Roman Catholic schools 
 and churches. He then came to the second and most important objection : 
 that the greatest possible precaution ought to be taken to secure the death- 
 bed of a person from the solicitations which might surround it. But he 
 urged that, a consideration of the state of property, a reference to the exist- 
 ing law, and a knowledge of human nature, would tend to show, that their 
 apprehensions were unfounded or exaggerated. A large proportion of landed 
 property was entailed ; personal property might be bequeathed without'any 
 restriction (which constituted, of course, the chief property of the poorer 
 plasses), and it would be unreasonable to legislate upon the probability that 
 parents, generally, would leave their children without provision. Besides, 
 while the law forbade men to leave their estates for good purposes, it per- 
 mitted them to do so for foolish purposes. Leave lands to found churches, 
 or colleges, or convents ! Monstrous proposition ! But to endow a mena- 
 gerie — to perpetuate the childish vanity of human nature — to gratify the 
 senseless pride of the dead — all this the law sanctioned and enforced. Let 
 any candid mind strike a balance between the possible evil of some possible 
 case of indescribable hardship, and the great general certain good which 
 would result from a repeal of the mortmain law. But, in order to meet any 
 apprehensions or objections, there were great limitations which might be 
 fairly enforced. First, with respect to value — ^he saw no objection to adopt- 
 ing the principle of limiting the quantity of land to be left for pious pur- 
 poses to one-third or one-half of an estate. There were, again, certain 
 purposes for which it might be permitted, under certain circumstances, to 
 leave all the land a testator possessed, supposing it did not exceed a certain 
 quantity. Again, another protection might be found in the addition to the 
 number and character of the witnesses. Then, there might still be a limit- 
 ation as to time; and it might be sufficient to enact that either a will or a 
 deed should be made one month, and enrolled one week, before death." 
 
 The noble lord concluded thus: — 
 
 " In an age, avowedly devoted to money-getting, when the wealthy are 
 wealthier, and the poor, alas ! poorer, in proportion, than they ever were 
 before ; when hundreds of thousands are without food, religion, or employ- 
 ment, I ask you to have the courage to believe in the nobler impulses of our 
 nature — to appeal to the glorious spirit which built our cathedrals, our 
 colleges, convents — toi give scope to the exercise of those virtues, without 
 which no country can become or remain great — ^faith and charity; and 
 
HISTORIC OF THE LAWS OF MORTMAIN. 107 
 
 brush away from the statute-book the cobweb-like legislation which a faint- 
 hearted age imposed for the purpose of entangling and fettering a munifi- 
 cence which they could not reverence or understand, and which we mourn- 
 fully desiderate." 
 
 All this was eloquent enough; but the House of Commons 
 cared nothing for charity or faith. Sir J. Grahanij in opposing 
 the motion, alluded to the fact, that there had hardly been, 
 throughout the speech of Lord J. Manners, forty members pre- 
 sent, so little interest did the subject excite. He imitated the 
 example of the noble lord in mixing up the subject with the 
 law of mortmain; and characterized the motion as an attempt 
 to abolish a code of laws which had existed since the time of 
 Edward I! He argued: — 
 
 " It was impossible to relax the laws in favour of the Church of England, 
 without also doing so in favour of Roman Catholics and dissenters. He 
 alluded to the alarm which might be awakened as to the possible devotion 
 of property to ' superstitious uses', but, at the same time, said, this jealousy 
 ought not to be confined to any one Church ; for within the pale of what he 
 might still call the Protestant Church, he feared as much superstition might 
 now be found as in Churches more corrupt. Why, what did the noble lord 
 himself say 1 The noble lord entertained the opinion, that it might be de- 
 sirable to re-establish religious houses, and distinctly described them as 
 ' monastic institutions' . Now, I entreat the House, when such opinions are 
 avowed — when it is declared that it is expedient to re-establish ' monastic 
 institutions' — I entreat the House to pause before they pass a resolution 
 condemning the law of mortmain, which imposes a salutary check on fancies 
 such (zs these;* a law of which the commentator, Blackstone, declared, that 
 
 * The language of Sir J. Graham last year, when he spoke of Catholic 
 religious houses with such respect, shows thai it is only Protestant religious 
 houses he regards as ' fancies', and that for th.e former — the otAj real ones — 
 he has (what man of enlightenment could avoid it f) a sincere respect. 
 
 In the language of Sir J. ©raham, about the swallowing up of all the 
 land of England by the clergy, one sees the prejudice which originated at the 
 era of the Revolution, which was perpetuated by the language held in parlia- 
 ment on the act of George II, and propagated by such unprincipled writers 
 as Blackstone, whom the most learned legal authorities consider on all sub- 
 jects superficial, on many fallacious ; and who certainly, on all subjects con- 
 nected with the Church, is mendacious. 
 
 " He who, treading under his feet with indifierence the ruins of an ancient 
 abbey, has not called up in fancy the shades of the cenobites who lived and 
 died there ; he who passes coldly through the corridors and cells of convents 
 half demolished, and feels no recollections, and not even the curiosity to ex- 
 amine, he may close the annals of history, and may cease to study the beau- 
 
108 HISTORY OF THE LAWS OF MOKTMAIN. 
 
 by it Edward effectually closed the great gulf in which all the landed pro- 
 perty of the kingdom was in danger of being swallowed." 
 
 It need hardly be pointed out, that the law against which 
 the motion was directed, was the law, not of Edward, but of 
 George II, which had nothing to do with it. Nor, need it be 
 observed, that the old monastic institutions were, for the most 
 part, founded not by will, but by gift. 
 
 Mr. C. BuUer, in a very philosophical and liberal speech, 
 said : — 
 
 " He was anything but afraid that the Church would get too much pro- 
 perty, or that ' a great gulf would be opened by this measure, in which all 
 the landed property of the country would be ' swallowed'. He wished he 
 could, see any sign among the landed proprietors, that they were inclined to 
 give property to pious purposes. He thought it rather a shame to this age, 
 when he contrasted the little that was given now, with the much that was 
 given formerly . When he looked at the colleges and at the hospitals of the 
 country, he was ashamed to observe that not one-fiftieth part of the means 
 of these institutions have been contributed by men in the present age. He 
 thought it should be the tendency of legislation, not to guard against the 
 faults of former times, but rather to guard against the faults of our own 
 times ; and it would be wise for the legislature to give some encouragement 
 to men of property not to accumulate aU their property in the hands of 
 their descendants, but to make the people, to some extent, the objects of 
 their bounty. The old fears respecting the accumulation of property in the 
 hands of corporations had now no validity, formerly, the fear was, that the 
 Church would not contribute, from the land, its fair proportion to the mili- 
 tary force of the kingdom. As for any fear that agriculture would suffer 
 from the possession of land by the Church, such fear was opposed to the 
 whole course of history. ' It is better to live under the crosier than under 
 the lance', said the serf of former times ; and, indeed, it has been almost 
 invariably found, that the Church and the corporations were the best land- 
 lords. They are so at the present time. Our colleges are uniformly ac- 
 counted good landlords — the lands of Greenwich Hospital are admirably 
 managed. The law only encumbers the statute-book, and causes cumbrous 
 conveyances and increased litigation. He should therefore certainly support 
 the motion as to the ancient statutes of mortmain.* As to the act of 
 George II, he should feel inclined to treat it with great caution ; for, though 
 
 tiful and the sublime. There exists for him no historical phenomena, no 
 beauty, no sublimity : his mind is in darkness, his heart is in the desert." — 
 Bahnez, Protestantism and Catholicism Compared, c. 38. 
 
 * Which had no practical operation, as compared with the modern law of 
 George II. Even in a man so enlightened, one sees the force of prejudice; 
 clinging to the vulgar idea of the subject. 
 
HISTORY OF THE LAWS OF MORTMAIN. 109 
 
 the statute may periiaps go too far, yet I should desire to maintain some 
 stringent restrictions to prevent the fears of dying persons heing unduly 
 acted upon. He thought we might, after due consideration, remove some of 
 those barriers which are now such frmtful causes of expense, doubt, and liti- 
 gation ; and giving thereby an impulse to private charity ; restoring among 
 the wealthy classes of the country the feeling, that they would be making 
 the best use of their property in applying part of it to provide for the moral 
 and religious instruction, and for the spiritual well-being of the people." 
 
 Sir R. IngUs represented the churchmen, who would willingly 
 have the law repealed as to themselves, but not as to the 
 Catholics. He said: — 
 
 " He could not but regard the motion with favour ; yet he could neither concur 
 in the arguments of the noble lord in proposing "it, nor in those of the Home 
 Secretary in resisting it. He could not agree in any desires for the revival 
 of monastic institutions. He was not one of those who regretted their de- 
 struction and extinction. On the other hand, he protested against the 
 assumption, that whatever restrictions are removed from the Established 
 Church, must also be removed from Roman Catholics and dissenters. He 
 contended, that the constitution of England enshrines its religion — the 
 religion which we had retained for the last three centuries.'' 
 
 The religion which was enshrined in the constitiltion of 
 England — or rather the religion from which that constitution 
 arose — was the Catholic religion, the religion of religious houses, 
 the religion which founded the cathedrals, the colleges, and the 
 monasteries. But, at this time, the very idea of restoring those 
 beautiful institutions was enough to destroy the motion. 
 
 Mr. Bernal said : 
 
 " When he found the noble lord had specially directed his attention to one 
 object, which, in the old Catholic sense of the word, would be 'charitable'; 
 when he found the noble lord point to the reestahlishment of monastic iristi- 
 twtions, — he thought the House could not be deceived as to the real motive 
 of this demand for the repeal of the mortmain law." 
 
 Mr. Borthwick said, satirically : 
 
 " The power of imagination was astonishing : the moment monastic insti- 
 tutions were mentioned, the minds of members were filled' with visions of 
 ancient times. He thought the subject should undergo full investigation, 
 and had no fears as to the Church of England, believing that the church 
 which had the most truth would prevail." 
 
 But Sir R. Inglis, the especial parliamentary patron and 
 representative of that Church, thought otherwise, and said : 
 
 " That Church which Her Majesty solemnly swore, in the sight of God 
 and man, to maintain and uphold: I never will allow, so far as lies in 
 
110 HISTOEY OF THE LAWS OF MORTMAIN. 
 
 my power, this Church to be placed on the same footing with Roman Catholic 
 and Dissenting institutions. He thought, as to the Church of England, the 
 law of George II ought to he relaxed : he would ask whether, since that 
 statute passed, a great amount of personal property had not been acquired 
 in this country, — an amount which, in the reign of Edward I, would have 
 been' regarded as beyond the power of man to accumulate, and the whole of 
 which, without restraint from any law, might be bequeathed to pious pur- 
 poses." 
 
 This was the strongest possible argument against the law ; 
 for if personal property to an immense extent had not required 
 such protection, why should real property require it? It is 
 easy to see that the real reason of the reluctance of Churchmen 
 to own the motive Was jealousy of Tractarianism and Catholi- 
 cism. Thus, Mr. Brotherton (a Dissenter) said : 
 
 " He thought that thanks were due to the noble lord for calling public 
 attention to the inconveniences of the law of mortmain. He knew of a case 
 in which an intention to leave property to a Dissenting institution, to carry 
 out certain charitable purposes, ha,d been defeated by this law ; he believed 
 that if the law were repealed, many good, charitable pjirposes would be pro- 
 moted." 
 
 ■ In the House of Commons, however, bigotry is far more po- 
 tent than charity : there was not the least chance of success. 
 Lord J. Manners, in withdrawing his motion, explained that it 
 had been misunderstood, and that he did not mean the entire 
 abolition of all restrictions, but the removal of the present re- 
 strictions. Accordingly, next session, the noble lord moved for 
 a select committee to inquire into the subject.. He mentioned 
 several cases illustrating the ill effects of the law. 
 
 " In Stockport, a gentleman had bequeathed an estate of ^500 a year to 
 an infirmary, but the devise was defeated by this law. So in a parish in 
 Somersetshire, a gentleman, who, for some years before his death, had inti- 
 mated his intention of doing something for the poor, left a house and laud 
 of the value of ^120 a year, in trust, to distribute the proceeds among the 
 poor of the parish ; but the devise was void under the act of George II." 
 
 Sir J. Graham assented to the motion for a committee, well 
 knowing that it could lead to no practical result. 
 
 The committee, accordingly, were nominated, comprising the 
 following members : liOrd John Manners, Mr. Shaw (the present 
 Recorder of Dublin, an Orangeman) ; Mr. Charles BuUer (a 
 radical, and political economist) ; Mr. Smythe, Mr, E. Yorke, 
 Mr. James Wortley (the present Earl Wharncliffe), Sir John 
 
HISTORY OF THE LAWS OF MORTMAIN. Ill 
 
 Yarde BuUerj Mr. Milnea, Mr. Sotheroiij Mr. Dickinson, Vis- 
 count Clive, Conservatives and churchmen ; Sir G. Grey, Whig, 
 churchman; and Mr. Brotherton, a Dissenter; and the Earl of 
 Arundel, the only Catholic. 
 
 Sir Francis Palgrave, whose interesting and important evi- 
 dence it was alone worth appointing a committee to obtain, gave 
 a luminous and learned history of the law, from the earliest 
 times, affecting dispositions for pious purposes, and proved that 
 (as it has been contended in these pages) the recent laws of 
 mortmain originated, not in any jealousy of religious endow- 
 ments, hut related entirely to what was purely financial and 
 political. The main reason, however, he said, was the habit of 
 taking traditionary opinions upon trust. People (he said) rarely 
 take the trouble to examine the ground of the opinions they 
 have formed. The late Mr. Burge^ Q.C., the learned writer 
 upon foreign and colonial law (a barrister of nearly forty years' 
 experience), gave evidence very similar to that of Sir F. Palgrave, 
 and equally characterized by learning and enlightenment. Mr. 
 Frere, a solicitor, who, for nearly half a century, had been en- 
 gaged in business of charities ; Mr. Hadfield, a solicitor of forty 
 years' standing; and Mr. Field, an attorney of the highest 
 respectability, and of large experience in the administration of 
 suits respecting charities, — gave evidence of much the same 
 tendency, and stated that they knew of no hequests for charitable 
 purposes obtained improperly. Mr. Matthews, a barrister, and 
 Mr. Hodgson, a conveyancing counsel, gave evidence in favour 
 of a relaxation of the law, as did Mr. North, M.P. ; Mr. C. 
 Hodgson, Secretary to Queen Anne's Bounty; and Mr. Jelf, 
 Secretary to the Church Building Commission. The Lord 
 Advocate showed that the law did not extend to Scotland; the 
 Right Hon. A. Blake, that it had not been enacted in Ireland ; 
 and Mr. Milnes, M.P., and Mr. Bach, a foreign lawyer, showed 
 that it did not exist upon the continent, and that, although due 
 precautions were taken for the protection of relatives, no pecu- 
 liar restrictions were imposed on the disposition of property for 
 charitable purposes, Mr. Cripps, M.P., a governor of Guy's 
 Hospital, which has considerable estates in Herefordshire, Lin- 
 colnshire, and Essex, gave evidence as to their management, 
 tending to destroy the vulgar idea, that property held by charit- 
 able institutions is likely to be mismanaged. 
 
112 HISTORY OF THE LAWS OF MOHTMAIN. 
 
 Such having been the general tendency of the evidence, in 
 which hardly a single witness spoke in favour of the principle 
 of the law, and not one upheld it in its present form, the 
 committee, on the 24th July, presented a report, in which they 
 stated that, — 
 
 " Though, they did not feel authorized by the terms of reference, to report 
 in favour of any specific alteration of the laws of mortmain, they felt bound 
 to state, from an attentive consideration of the evidence submitted to them 
 by witnesses whose means of information and authority must be held to be 
 great — that the operation of the law is most unsatisfactory — leads to doubt, 
 expense, uncertainty, and litigation, and frequently defeats good and pious 
 purposes which the present aspect of the country would induce all men to wish 
 fulfilled; while from, the existing facilities for evasion, they cannot he regarded 
 as securing the main purpose for which they are supposed to he maintained, 
 by securing the heir from unexpected alienation of property to which he 
 might reasonably have hoped to succeed." 
 
 So far as the avowed object of the committee was concerned, 
 the consideration of the operation of the act of George II, the 
 overwhelming preponderance of the evidence was, it will be 
 seen, obviously against the -act. But, on the part of the majority 
 of the church party, this was by no means their main object. 
 They desired, indeed, to relieve the Established Church from 
 the operation of the act, but they desired still more to retain it 
 with respect to Catholics j or, if that were impossible, to impose 
 counter restrictions. Accordingly, with this object, the Bishop 
 of London appeared before the committee,- and said : — 
 
 " I think the policy of the country since the Reformation, with respect to 
 restricting the Roman Catholics in matters concerning the propagation of their 
 principles, to be defensive; and I am not prepared to consent to any measure 
 which shall increase the boundaries of their Church in this country." 
 
 Upon which the Orange Recorder eagerly asked: — 
 
 " Does any possible way to prevent it occur to your lordship?" 
 
 The bishop evaded a direct reply to the question, but from 
 the kind of evidence which was adduced on the part of the 
 Established Church, it is obvious that " a possible way of pre- 
 venting it had occurred" to the bishop and Sir R. Inglis, which 
 had indeed already partly been acted on during the debate, by 
 the honourable baronet bringing forward cases calculated to 
 create prejudice against the Catholics. The same parties had 
 evidently directed their attention in a considerable degree to the 
 
HISTORY OF THE LAWS OF MORTMAIN. 113 
 
 subject of testamentary dispositions in favour of the Catholic 
 religion, and now had recourse to every means for the purpose 
 of producing a feeling against the Catholic priesthood. Hence, 
 they called before them Mr. Eastwood, the defeated plaintiif in 
 the great " Brindle will case," already alluded to, and committed 
 the gross injustice of allowing him, after having, by his counsel, 
 deliberately withdrawn and retracted aU imputations upon the 
 propriety and validity of the transaction, to enter into it again, 
 and make statements as hostile and as injurious as the anger of 
 a disappointed expectant and defeated suitor could suggest; and 
 all this unsworn, and in opposition to the sworn evidence taken 
 in the suit. Considering, that after the fullest investigation 
 upon sworn evidence in a court of justice, the case had been 
 acknowledged to have failed ; and considering that the judge 
 had distinctly declared, that if such a will could be set aside, no 
 one's will would be safe; surely this was as unfair and iniquitous 
 a proceeding as could be conceived ; and one of which the in- 
 justice was not mitigated, by inflicting upon Mr. Sherborne, 
 the defendant, the annoyance of having to enter again into all 
 the details of the transaction, after it had been, for three 
 or four years, the subject of litigation, and, as he had hoped, 
 finally settled. Indeed, the committee themselves seemed sen- 
 sible enough of the injustice of such a course j for, in their 
 report, they said, with respect to certain petitions referred to 
 them : — 
 
 " In consequence of the peculiar nature of the evidence, containing reflec- 
 tions on private character, and, in many instances, not bearing at all on the 
 present object of their investigation, the Committee have exercised a discretion' 
 in suppressing certain portions of it." 
 
 It does not appear, however, that the committee exercised 
 " that discretion" with perfect impartiality, for, not only was 
 the Brindle will case put forth in the unfair manner already 
 mentioned, but Mr. Trappes, a suspended priest,* was procured 
 to come forward and state as much as possible to the prejudice 
 of the priesthood of the Church to which he professed to belong. 
 But his evidence, although the hostile animus was most marked, 
 
 * The suspension has long since been removed; and the facts are now 
 treated simply as matter of history; and in justice to other parties. 
 
 I 
 
114 HISTOBY or THE LAWS OF MORTMAIN. 
 
 rather tended to destroy the case he was produced to support. 
 For, when asked by Lord Clive — 
 
 "Do you think that there are many cases occurring, in which pro- 
 perty is left for Roman Catholic purposes, to the prejudice of near 
 relations f 
 
 The answer was — 
 
 " Yes, I do. I have known instances where persons in very poor circum- 
 stances of life, who have had their uncles and aunts, have left ^600 or 
 J700 to the Church, when it would have been very u^eftd indeed to the poor 
 people themselves." 
 
 In which reply it is to be remarked : — first, that he durst not 
 declare that he knew of a single case in which near relations had 
 been disregarded, whom it was a duty to regard ; or, secondly, 
 of any case, in which the relatives disregarded were so poor and 
 unprovided for as to render it a duty upon the testator to re- 
 member them ; and thirdly, that he shrank from specifying any 
 case at all, and sheltered himself under the most vague gene- 
 rality. When it is recollected, that this person was a witness 
 labouring under strong personal feeling, and under the censure 
 of his bishop, it must be plain that this evidence is decisive as 
 to the unimpeachable character of the general conduct of the 
 Patholic priesthood in this respect. Let it be observed, -that he 
 does not venture to say any instance had occurred of a Catholic 
 testator making bequests to the Church, and disregarding his 
 relations; in the very instances he mentions, it may be, for all 
 that he asserts, that the "uncles and aunts" had some legacies 
 left them; or that if they had not, they did not require any; 
 for all he says is, that the money would have been •oery useful 
 to them. And when another member asked: — 
 
 " Are you aware of instances where undue influence has been used ? " 
 
 He -answers: — 
 
 " I have no means ofhnowing it. But I have known instances where con- 
 siderable sums have gone to charities, which it struck me would be much 
 better laid out among indigent and near relatives." 
 
 The obvious evasiveness of this answer must be remarked, 
 "I have no means of knowing it". It is quite plain, that the 
 reason why he replied thus was, that he had not any cause to 
 suspect or suppose that any such cases had occurred, or it 
 cannot be questioned he would have mentioned them ; and it 
 
HISTORTi OF THE LAWS OF MORTMAIN. 115 
 
 is clear that lie had as much means of knowing as any person 
 possibly could have; as being a Catholic priest known to be 
 suspended, and at liberty to hear of any complaints of disaffected 
 persons or disappointed expectants. And directly afterwards, 
 he himself conclusively shows that no undue influence could 
 properly be used in the Catholic Church to procure bequests for 
 pious purposes, for he says : — * 
 
 " It would not be juitifiahle to obtain property for the Church, further 
 than by recommending objects for charitable purposes; but to persuade 
 them that they would save their souls, or get c[uit of their sins by bequests, 
 I should think highly immoral." 
 
 And he adds : — 
 
 " The regular clergy never meddle with wills."'\ 
 
 The Bishop of London, who came forward with the double 
 object of inducing the legislature to relieve from the act of 
 George II the Established Church, and to deter them from re- 
 lieving the Catholic Church from its operation, sought to show 
 that there was reason, with respect to the Catholic clergy, to appre- 
 hend influence for the purpose of procuring gifts from testators 
 for the Church ; and cited a passage from a French theologian 
 of the last century, to the effect, that the doctrine of the Church 
 
 * Here it may be observed, that in 1829 the regular orders had been pro- 
 hibited from establishing themselves in this country ; so that, even if there 
 were any truth in the charges against the Catholic clergy on the score of 
 undue influence, at all events Protestant legislation has done its best to pro- 
 duce the alleged evil it is pretended to denounce. And, at the same time, 
 the persecuting and spoliating laws of the Reformation have produced that 
 poverty, which is of course an incentive to eagerness in obtaining alms for 
 the Church, so far as it is lawful. 
 
 + He cited the following passage from the constitutions of the Jesuits :— 
 " Quamvis ad bona et sancta opera et maximfe perpetuo duratura incitare 
 laudabile et ob majorem tamen'sedificationem nuUus de societate debet nee 
 potest quamquam alium eleemosynas perpetuas domibus vel ecclesiis ejusdem 
 societates relinquendas incitare; et si aliqui sponte sua, eas relinquertmt 
 nullum jus civile ad eas petendas acquiratur ita ut in judicio conveniri qui 
 non solveret posset. Sed eum ad id charitas propter Deum eos moverit tunc 
 eas elargiantur." It is plain, from the apposition of the words rdinquerwnt 
 and elargiantur, that the idea of St. Augustine was, that alms were rather 
 given by the living than the dying ; rather gifts than bequests. No Catholic 
 can be ignorant that, on any principle of morality, this illustrious saint is as 
 high an authority as could be adduced. 
 
 t2 
 
116 HISTORY or THE LAWS OF MORTMAIN. 
 
 was, that alms were one means of atoning for sin.* It was un- 
 worthy of his lordship to mislead the Committee by making them 
 imbibe the impression that in this passage, or in any Catholic 
 theologian, alms ordinarily mean legacies.'^ And his lordship 
 might have been reminded, that the only cases which had ever 
 come before the courts, of alleged undue influence exercised by 
 ministers of religion (except one, in which the charge failed), 
 were cases of Protestants — and cases in which the influence had 
 been exercised for their own selfish personal interest. 
 
 Dr. Edward Cox, professor of theology, and afterwards Presi- 
 dent of St. Edmuud's College, a clergyman of the highest cha- 
 racter and well-known to the Catholic world by his translation 
 of Dolling er's History of the Church, gave evidence, which it 
 would be impossible to impeach, as to the real teaching of the 
 Catholic Church on the subject : — 
 
 " It is quite contrary to what is taught in the schools of theology in the 
 
 * " In confesso est saoris utriusque testamenti litteris propositos esse hos 
 ahluendis scelerum maculis opportissimos fontes : eleemosynas, orationes 
 jejunia." — Thomassinus, Discip. Eccle. iii, 1. 
 
 + Why did not the bishop q^uote St. Ambrose : — " We have many swJ- 
 sidiary means by which we may, redeem our sins. Have you money? Re- 
 deem your sins. The Lord is not venal, but yoy, yourself are venal ; redeem 
 yourself by your works — redeem yourself by your money." (S. Ambrosii, 
 Lib. de Eleem. et Jejunis, cap. 20.) And why did he not quote the Council of 
 Nice: — "Whoever, beiny penetrated by the fear of God, shall testify by his 
 tears, patienoe, and good works, that he has really changed his life, shall by 
 the merit of prayers be re-estal6lished in communion." Thomassinus him-' 
 self speaks of the compensations appointed by the Church for the remission 
 of the temporal penalties of sin, without any view to the emolument of the 
 Church ; and cites St. Peter Damian, as overboiling with indignation against 
 the plague of avarice and corruption, wherever it could be traced. {De Vet. 
 et Nova EeclesicB Disciplinia,.^!^,!. iii, lib. i, cap. 30.) The decrees of the 
 Council of Ives de Chartres, say : — " Sane canendum est ne quis quam ex- 
 istimet infanda ilia crimina qualia que agunt regnum Dei non possidebunt, 
 quotidie perpetxanda et eleemosynis quotidie redimeuda. In melius est 
 quippe mia mutanda et per eleemosynas de peccatis proeteritis est propi- 
 tiandus Deus.'' {Ivonis Carnot. Decret. par. xiiij de Speculation. Sentent. cap. 
 12.) And was the bishop ignorant that all Catholic theologians teach — as, 
 for instance. Duns Scotus — that the indulgences attained by alms pertain 
 only to those who are in a state of grace % (/Duns Scotus Miscellaneorum, ix, 
 i.) The most common catechisms for children teach the same truth. 
 
HISTORY OF THE LAWS OF MORTMAIN. 117 
 
 Catholic Clmrch — that a clergyman should abuse the influence he naturally 
 possesses, in order to obtain property for his Church, or for charitable pur- 
 poses. The Catholic priest, in all schools of theology that I have seen, is in 
 all respects taught the principles of common justice between relatives and 
 the testator ; and t/m nearer the relationship, the greater is the obligation of 
 charity; such as parents to provide for their children, and children for their 
 parents. It is so reqiiired: and a Catholic priest who would act contrary to 
 this, would be considered as giving great cause for scandal to all to whom it 
 might be known." 
 
 Dr. Cox cited, in support of the statement, a work written by 
 a cardinal (the Cardinal de Luzerne), and then recently repub- 
 lished by the Archbishop of Paris, which thus directed the 
 priest : — , 
 
 " He must not make a will unless requested to do so by the testator and 
 the family; he should object, as far as possible, to make it.* He is to be 
 guided only by the good and welfare of the testator and the family, and con- 
 sider himself responsible to the testator, the family, and to God, for the advice 
 he gives; and he is to avoid being named executor or guardian."t 
 
 Of course it was impossible for the Committee not to attach 
 more credit to evidence such as this, than to the insinuations 
 of a suspended priest, and accordingly they stated in their 
 Report: — 
 
 " That the authoritative statement of Dr. Cox with respect to the doctrine 
 of the Church of Rome — ^the sentiments of those who guide its practice, and 
 the influence of public opinion on the clergy — are sufficient to dispel appre- 
 hensions of the influence of the Roman Catholic priesthood." 
 
 They however added : — 
 
 " While they think the popular fear on this subject exaggerated, they ad- 
 mit the propriety of guarding against the possible abuses, by provisions 
 founded on such principles as that of the Scotch law, by which the heir can 
 defeat a will made to his prejudice, written sixty days before death ; or, if 
 the testator were then ill of his mortal disease, or that of the Code Napoleon, 
 which renders the confessor incapable of inheriting from his penitent,* as 
 well as by safeguards similar to that contained in the measure now before 
 Parliament, for regulating charitable bequests in Ireland." 
 
 Upon which it is to be observed, that a recommendation more 
 
 * That is, he is to do so only if it be necessary, from there being no other 
 party accessible able to do so. There is a remarkable harmony between this 
 and the decree of the diocese of Dublin, cited in the evidence before the 
 Committee of last year. See post. 
 
 t That is, for his own personal benefit. 
 
118 HISTORY OF THE LAWS OF M0KTM4IN. 
 
 inconsistent in itself, and with the opinion of the Committee, on 
 the general operation of the law of George II, could not have 
 been written, since all these three specimens of law adduced, 
 differ, substantially, in principle — the Scotch law agreeing wjth 
 the old English law, of drawing no distinction between charita- 
 ble dispositions and any others; the new Irish law agreeing, as 
 far as it went, with the very law of George which the Com- 
 mittee had already denounced, and knowing that very distinc- 
 tion; and, as to the French law, it could have no application to 
 the subject, so far as the Catholic Church is concerned, seeing 
 that the circumstances of that Church in this country and 
 in France, or in any other Catholic country, are totally different 
 — as different as its present position in England is from its 
 position before the Reformation. This is a general observation, 
 equally applicable to the ancient laws of mortmain, and any 
 modern laws in any Catholic country restricting testamentary 
 dispositions for pious purposes; that such laws are passed in 
 countries where the Catholic Church, already amply provided 
 for and endowed, possesses the cathedrals, churches, and colleges 
 founded by her children in ages past; is not only permitted the 
 free exercise of her powers, but allowed the full use of her 
 religious orders, recognized by the state, and is exposed to no per- 
 secuting statutes, and no popular prejudices. It is impossible to 
 make laws, passed under such circumstances, any precedents 
 for similar laws in this country, where the circumstances are 
 in everything the reverse. For instance, in France, a penitent 
 could have no reason for leaving property absolutely to a con- 
 fessor except for his own private use; there being no law against 
 the Catholic religion rendering secret spiritual trust requisite; 
 whereas, in this country, the reverse is the case; and the statute 
 of superstitious uses requires such trusts; so that it is impossible 
 in any case to tell whether the legacy be for the confessor's own 
 use; and if not, then a law to preclude him from accepting it 
 would be quite differeat in its character and scope from such a 
 law in any Cathohc country; and there is a degree of dishonesty 
 in drawing parallels or precedents from circumstances so dis- 
 similar. 
 
 Emboldened by the evidence and report of this Cgmmittee, 
 Lord J. Manners, in 1846, brought in a bill to relax the law 
 
HISTORY OF THE LAWS OP MORTMAIN. 119 
 
 against pious and charitable bequests; and, in moving the second 
 reading, he adverted to the manner in which a moderate propo- 
 sition for providing spiritual consolation and instruction in 
 " workhouse-bastUles"* had been defeated. ^On the other hand, 
 he said: — 
 
 " Every possible impediment exists to thwart and defeat that private 
 charity on which the State affects to depend for fulfilling such objects." 
 
 The noble lord mentioned, that a statement had been laid 
 before the Manchester Lav? Association, as to large charitable 
 bequests, which had failed through the testator's attorney over- 
 looking that the money bequeathed was laid out on mortgage. 
 With regard to the pretence of protection for relations against 
 unjust disherison, he said: — 
 
 " That his measure would give the Lord Chancellor power to order (in 
 accordance with the old common law) reasonable allowance out of property 
 bequeathed for religious or charitable purposes, to certain relations of the 
 donor (parent, child, wife, or grandchild) left unprovided for. And another 
 clause provided that, when more than half the donor's property, personal or 
 real, was bequeathed for charitable purposes, the will should be executed in 
 the presence of certaia witnesses (of whom the medical attendant was to be 
 one), who should testify that the testator was of sound disposing mind." 
 
 With reference to the " cant " objection (as he truly called 
 it) about its being injurious to the country that charitable 
 bodies should have the management of land, the noble lord 
 said : — 
 
 "He denied that property being bequeathed to charitable institutions 
 did injury to the state ; or' any at all, countervailing the benefit to be de- 
 rived by the community from the establishment of churches, cathedrals, 
 hospitals, and almshouses. There was no truth in the allegation that cha- 
 ritable estates were managed in a manner less advantageous to the public 
 interests than any other description of estate. It could not be supposed, 
 that the tenant of a clergyman holding under a charitable trust, farmed in 
 a less advantageous manner than the tenant of a squire. The objection had 
 been amply proved unfounded in fact, and was a mere pretext of political 
 economists, who wished to interrupt the progress of charity and benevolence." 
 
 As to " undue influence," the noble lord urged : — 
 
 " That the argument applied equally to the personal property : and he 
 never had heard any one mention any case to have been established against 
 any clergyman, Protestant, Roman Catholic, or Dissenter, of having surrep- 
 
 * The Protestant substitutes for religious houses and almshouses. 
 
130 HISTORY OF THE LAWS OF MOKTMAIN^ 
 
 titiously or improperly procured bequests of personal property from dying 
 persons. He had heard of twelve beneficed clergymen having ridden from 
 Exeter on a Sunday, to huijt, attired in scarlet uniforms and top-boots. He 
 had heard of dissenting ministers accused of the abetting the atrocious crime 
 of assassination. But he had never known it to be alleged against the clergy 
 of any Church, that they had tampered with testators on their death-beds, 
 or induced them to bequeath property for pious purposes." 
 
 In conclusion, the noble lord made this eloquent though 
 rhetorical appeal : — 
 
 " I call upon the House to repeal the law of George II, which is con- 
 demned by the authority of the most eminent of our conveyancers at law, 
 which has been denounced by the fervid eloquence of a Palgrave, and the 
 legal authority of a Jarman and a Burge — a law which has been proved by 
 the fatal experience of a century to be impotent for good, most apt and in- 
 genious for evil. I do not desire to disturb the old laws of mortmain — re- 
 quiescant in pace: I shall not disturb their slumbers. But I entreat the 
 House to return to that wise and generous policy, which prevailed in our 
 courts of legislature and judicature, when a Bacon, a Coke, and a Clarendon 
 were the luminaries of the one, and the Tudors and Stuarts presided over 
 the other ; and to enact a law, sanctioned by the authority of great modem 
 lawyers, which is in accordance with the best feelings of human nature, and 
 which is calculated to diffuse throughout the land those great and manifold 
 blessings, of which faith is the mother, religion the handmaid, and charity 
 the fulfilment." 
 
 The House of Commons^ however, did not care much for faith, 
 charity-j or religion; and the Home Secretary, Sir J. Graham, 
 coldly received and sternly resisted the motion. He took his 
 stand, he said, on the statute of George II. He said : — 
 
 " The framers of that act had experience of the evil since the Reforma- 
 tion ; and in passing, it they supposed a reason stUl binding on the state." 
 
 Now, the " evil" the framers of the act complained of, was the 
 practice of persons leaving property, not from charity but vanity, 
 with a most uncharitable and unnatural disregard of the wants 
 of their relatives; and the '^ reason" alleged for passing the act 
 was, the necessity of repressing this miserable system by act of 
 Parliament — a system which it has been shewn originated in 
 Protestant times, and at a period when ohly Protestants could 
 have or leave land for any purpose. Sir J. Graham distinctly 
 declared this "evil" and this "reason" equally exist in the pre- 
 sent age. If so, what must be the moral character and influence 
 of Protestantism ? It has been seen, that to the Catholic re- 
 
HISTORY OF THE LAWS OP MORTMAIN. 131 
 
 ligion such a practice is abominable and detestable, and in 
 Catholic times had no existence. What can more clearly show- 
 that Protestantism, as a religion, is inimical to charity ? The 
 right honourable gentleman, however, actually used as an argu- 
 ment va. favour of the act — the immense increase in the amount 
 of personal property which had taken place since it passed. The 
 amount of personal property which had paid legacy duty since 
 the year 1793, was, he said, £1,339,419 : 5 : 11. Strange that 
 it did not strike him, that this was an overwhelming argument 
 against the law; for no one had maintained, that of this enor- 
 mous amount of personal property, all of which might be be- 
 queathed^ for charitable purposes under the existing law, too 
 large a proportion had been left for such purposes. On the 
 contrary, all agreed, that too little had been left for such pur- 
 poses. How then could the law be necessary to prevent too 
 large a portion of landed property being bequeathed for such 
 purposes ? The right honourable gentleman went on to argue, 
 however, that with respect to land, the act was requisite. 
 
 " What is its policy ? Why, that if a person desire to devote his real pro- 
 perty to charitable purposes, it shall be by a sacrifice of a personal nature, 
 made during his life. The best test of his sincerity is, that he shall give up 
 his property while he lives; that he shall not be enabled to make charitable 
 disposition at the close of his life, in the last moments of his existence — 
 perhaps under the falsa impressions of an understanding clouded by disease, 
 or misled by priestcraft, under the idea that a misspent life may be atoned 
 for at the expense of his heirs. Such a proceeding is no proof of a repent- 
 ing heart, or an awakened conscience. But, on the other hand, if a man 
 wUl perform the charitable work at the expense of a personal sacrifice whUe 
 living, that is an act of virtue and beneficence, to which no law ought to be 
 a barrier. Is the act of George II such a barrier 2 No : on the contrary, it 
 carefully avoids any such discouragement ! " 
 
 To which it might have been answered, that this was because 
 the authors of the act were well aware, that not many persons 
 are able, and fewer stiU are likely to be willing, to give up 
 in their lifetime property they require for their support; who 
 yet, in many cases, may legitimately leave to charity at their 
 deaths, having no near relations, or none in any kind of want. 
 
 Then the right honourable gentleman took up the cant cry 
 of the political economists about "land being locked up".-^ 
 
 " The area of these islands being limited, and the accumulation of wealth 
 
123 HISTORY OF THE LAWS OF MOETMAIN. 
 
 desiring investment in land being great, it is not desirable to tie up land, 
 and place it extra commercium." 
 
 To which the answer would be, that the evidence, and all 
 history, showed that property was best managed by charitable 
 bodies ; and that the inalienability of trust property only arose 
 from an arbitrary rule of law, which could be altered. Sir 
 James said, in conclusion, " that he did not deny that every 
 encouragement ought to be given to the endowment of charita- 
 ble institutions" : he urged the uncertainty as to what were 
 religious or superstitious uses ; said the law of George II " had 
 worked well", and advised the House not to alter it. ' 
 
 Mr. Moncliton Milnes denied that the law had worked well, 
 and declared, on the contrary, that it had obstructed the great 
 moral object of giving to the charitable and religious institu- 
 tions of the country, a full share of the superfluity of the wealth 
 of the country ; and had caused a great amount of chicanery 
 and legal embarrassment. He urged members to study the 
 Report of the Committee upon the subject (which he intimated 
 few, if any, of them had read), and was persuaded that it would 
 alter their opinions upon it. He contended, that the ancient 
 mortmain laws had been based on political considerations ; and 
 went on to say : — 
 
 " It should be remembered, that the Eeformation caused the alienation of 
 great masses of Church property, to be squandered on favourites and on a 
 profligate nobility, who had helped in the plunder of the Church ; whereas, 
 in Germany, the Church estates had been transferred to civil stnd religious 
 corporations, for great public purposes, ai;d had laid the foundation of that 
 system of education, from which Germany now derived such advantages, and 
 from the loss of which England now stood in such a melancholy position." 
 
 Sir El. Inglis was angry at this, and said : — 
 
 " That, at the time of the Reformation, one-third of the'land of England 
 was in the possession of ecclesiastics ; and he instanced the abbey of Glas- 
 tonbury, the value of the lands belonging to which was estimated in 1719 at 
 £600,000. It was to prevent grants to so vast an extent being continued, 
 that the statute of George II was passed." 
 
 Which clearly showed that the act was in pursuance of the 
 laws by which these "grants" had been confiscated; with what 
 advantage to the nation let any one dispassionately consider. 
 It is the old Protestant policy of spoliation ; and the represent- 
 ative of the Protestant Establishment was consistent in support- 
 
HISTORY OF THE LAWS OF MOETMAIN. 133 
 
 ing it. There was something savouring of hypocrisy in what 
 followed — 
 
 " The foundation of charity is Belf-denial ; and where is the self-denial 
 exercised by an individual who would deprive his family of their just ex- 
 pectations that they would succeed to his wealth, hy bequeathing it to 
 strangers for charitable purposes." 
 
 It was not from the mouth of one who especially represented 
 an establishment supported for the spoliation of the Catholic 
 Church, that a definition of charity came very appropriately ! 
 And, although what was said, was in itself very true, it was not 
 very sincere, seeing that the act applies equally where there are 
 no near relations, or none in any want. 
 
 Mr. O'Connell made some observations in favour of the mea- 
 sure, marked by his usual point and energy, saying: — 
 
 " A million of personal property has passed through the Court of Probate 
 in the last fifty years, and without any legislative security against its being 
 left for pious purposes. It is surely time for some relaxation of the la^y 
 respecting real property. Ha ve you too much Church property ? Are yo'v, 
 overloaded with charitable lequests? Do you not want religious instruction? 
 You and I may differ upon religion ; but we agree in this, that it is our duty 
 to give religious instruction to the rising generation. Do not Stop the hand 
 of charity ! Of whatever persuasion we may be, let us encourage bequests 
 for giving instruction to the young ; and let us not, by a one-sided ■ or left- 
 handed act of parliament, obstruct the diffusion of spiritual instruction." 
 
 The Attorney-General, Sir F. Thesiger, professed to uphold 
 the act, on the ground that its purpose was to prevent disheri- 
 son of heirs ; but, well aware that this would not suffice with- 
 out some aid from prejudice, soon said : — 
 
 " The object was, to prevent the undue influence which was likely to be 
 exercised at the approach of death, in favour of pious uses." 
 
 And then laboured to cast suspicion especially on the Catholic 
 clergy. He adverted to the evidence of two priests before the 
 Committee, Mr. Sherborne and Mr. Trappes. The former gen- 
 tleman had admitted, that he should not think it incorrect to 
 incline a penitent to leave property for charitable purposes, for 
 the good of his soul : and the latter gentleman had said, that 
 he had reason to- believe that sometimes a Catholic clergyman 
 used undue influence to procure bequests. He then said: — 
 
 " It is true that Trappes was a suspended priest ; but then he either was a 
 respectable person, or he was not. If he were, his evidence must have 
 
134 HISTORY OF THE LAWS OF MOETMAIN. 
 
 weight; if not, then the House must consider the danger of such persons 
 surrounding the death-beds of penitents." 
 
 This partook of the sharpness of nisiprius, and the reader, on 
 referring to the evidence, as already described (with the notes 
 appended), will appreciate the power of prejudice in Sir 
 Frederic Thesiger on this occasion. And they will equally 
 appreciate the boldness of the Solicitor-General, Sir F. Kelly, 
 when he declared : — 
 
 " That the bill was opposed to the principles and policy of the law of 
 England, struck at the prerogative of the Crown, and was a Tiolation of the 
 constitution"! 
 
 Language, on which the only commentary that need be made, 
 is a referenae to the history of the law, as already laid before the 
 reader. 
 
 It is refreshing, after such sentiments, to turn to the speech 
 of Mr. C. BuUer, who argued ably in .favour of the bill, and 
 exposed the absurdity and inconsistency of the main argument 
 against it, or rather the prejudice as to undue influence upon 
 dying persons : — 
 
 " Are we to show such jealous care of real property, while we neglect per- 
 sonal property which requires still more care t The landed proprietors are, 
 after all, comparatively a small class as compared with the possessors of 
 personal property ; and on which of the two classes would undue influence 
 operate most severely ? Undoubtedly, upon those who are dependent on 
 personal property. Personal property, however, is exempt from the opera- 
 tion of the existing laws ; and, at the same time, there is not any complaint 
 of improper interference with dying persons on the part of these religious 
 attendants. The legislature ought rather to encourage the appropriation of 
 landed property to public and pious purposes. We have societies with annual 
 subscriptions, for charitable purposes; but we have no instances such as 
 those in former ages, of individuals founding magnificent churches and col- 
 leges, and other charitable institutions. And we now have no fear that this 
 <iisposition to found them wiU be carried to too great an extent." 
 
 Lord J. Manners, in reply, gave a specimen of the sort of 
 cases in which the present law operated against charity. The 
 case of — 
 
 "A person who had a small estate (not more than sufficed for his support), 
 and had no relative but one not likely to survive him, and also being desir- 
 ous of leaving the land to a charity, found himself precluded from so doing 
 by the act of George II, which required him to part with it irrevocably dur- 
 ing Ms lifetime, — the result of which would of course have been to leave 
 him destitute !" 
 
HISTORY OF THE LAWS OF MORTMAIN. 125 
 
 The noble lord also urged forcibly that no such law was found 
 necessary in Scotland, Ireland, or the colonies : — 
 
 " Why are our colonies without protection against these evils which are 
 apprehended 1 If these apprehensions be well founded, they ought to be 
 overridden by the priesthood." 
 
 All argument, however, was unavailing. The motion was lost, 
 on a division, by a majority of thirty-six, in a house of only 
 eighty-four members.* 
 
 Nor did the question rest there. Not only did the motion 
 fail, for repealing the law, bu,t it was extended to Ireland, where 
 hitherto it had not existed. The inquiry had elicited the fact, 
 and the legislature hastened to supply the deficiency ; so that 
 the result of the committee was not merely of no benefit, but of 
 positive injury to charity, especially as Ireland was essentially a 
 Catholic country, in which the principles of the Catholic religion 
 would always, as already proved, preserve the people from such 
 a system as was deemed to have rendered such a law requisite 
 in England, — the practice of leaving near relations in want 
 while hequeathing property to pious uses. The Catholic Church 
 teaches her children better than to confound the breach of 
 charity with the observance of it ; and there was, of course, the 
 less reason or pretence for the extension of such restrictive legis- 
 lation to a country like Ireland, substantially Catholic. 
 
 Prom the course taken by the representatives of the Esta- 
 blished Church on the occasion, it is clear, however, that the 
 very reason why the law was extended to Ireland, was, that it 
 was a Catholic country, and would principally apply to Catholic 
 legacies. It was, in some degree, an answer to the question of 
 the Orange Recorder to the Protestant prelate : " Does ani/ pos- 
 sible way occur to your lordship to prevent the spread of the 
 
 * Ayes :— Sir T. D. Acland, Lord G. Bentinck, Mr. Borthwick, Mr. Bro- 
 therton, Viscount Olive, Lord Courtenay, Lord Ebrington, Sir S. Glynn, Sir 
 J. Hanmer, Mr, A. Hope, Mr. P. Howard, Mr. A. McCarthy, Mr. M. Milnes, 
 Mr. O'Connell, Sir W. Somerville, Mr. Trelawney, Lord J. Manners. 
 
 Noes :— Major Beresford, Sir J. BuUer, Mr. Cardwell, Mr. Cripps, Mr. S. 
 Crawford, Mr. Goulbum, Sir J. Graham, Sir G. Grey, Mr. Henley, Right 
 Hon. S. Herbert, Mr. Hindley, Mr. Hume, Sir R. Inglis, Earl Jermyn, Lord 
 Jocelyn, Sir F. Kelly, Sir P. Thesiger, Lord Mahon, Lord Morpeth, Mr. 
 Newdegate, Mr. Spooner, Mr. J. W. Patten, Mr. Walpole, Mr. Wortley. 
 
126 HISTORY OF THE LAWS OF MORTMAIN. 
 
 Roman Catholic religion ?" It was, indeed, only a partial and 
 imperfect answer, as it only applied to Ireland. And another 
 secret object of ,tlie same parties was to devise some measure, 
 with a similar purpose, to operate on hoth countries. As the 
 law restraining charitable devises of landed property now was in 
 force in the one as well as in the other, the only extension of it 
 required was to render it equally applicable to personalty ; and 
 as the Established Church has preferred remaining under the 
 pressure of the law as to real property, rather than relieve the 
 Catholic Church from its operation, so it was proposed (at least 
 this was hoped by the supporters of the policy of that law) to 
 submit to a further extension of the law to personal property, if 
 only it might impose fresh fetters on its hated rival ; so plain is 
 it that as the law against charitable dispositions, testamentary, 
 or to take effect at death, though at first not passed against 
 Catholics (seeing that worse laws had already been passed against 
 Mh&m),if!2iS perpetrated principally for the purpose of restraining 
 them, so the law was now to be extended with the same purpose. 
 And as plain is it that as the penal law of the Revolution, pro- 
 hibiting Catholics from possessing land at all, was a develop- 
 ment of the persecuting policy of the Reformation, designed to 
 suppress the Catholic religion, so the law against bequests of 
 land for charitable purposes is kept up in pursuance of the same 
 policy, and its extension was conceived only as a continuation 
 of it. The general feeling against any charity, as it was the 
 result of the decline of that religion which was originally the 
 source of charity, directed itself especially against Catholic 
 charity, and with precisely the same feelings which had actuated 
 the Revolution parliament in preventing Catholics from possess- 
 .iiig land for any purpose, in order to prevent the spread of 
 popery, — ^it was now intended to obstruct their acquisition of 
 any property for the propagation of their religion. The pur- 
 pose was to be kept secret, however, until an opportunity oc- 
 curred, and an occasion arose for carrying it into execution. 
 
 Those who favoured this narrow and persecuting policy, would 
 prefer property passing to any relative however rich, or however 
 remote, or however irreligious, rather than that it should be 
 applied to the diffusion of the Catholic religion. One of the 
 cases mentioned before the committee of 1844 was the follow- 
 ing:— 
 
HISTORY OF THE LAWS OF MORTMAIN. 127 
 
 A lady, named Hemon, transferred £40,000 stock to trustees for the 
 benefit of the Catholic Church, reserving to herself the diyideuds during her 
 life (precisely the very thing she would have been precluded from doing by 
 the act of George II, if it had been land, or money connected with land). 
 After the execution of the deed, a nephew, named Kelly, came to her house, 
 and he and his wife " paid her great attention". The old lady was getting 
 very old and very Ul. The nephew ascertained she had executed some deed 
 and induced her to revoke it. Upon her death, a suit in Chancery ensued ; 
 cross bills were filed, one to set aside the deed, the other to set aside the will. 
 The issue was a compromise. 
 
 Now, the anti-papal policy which dictated the passing of the 
 Revolution "popery acts" preventing Catholics from holding 
 land, would lead men to exult in the success of the nephew in this 
 case, and to see nothing unworthy in all his scheming ; while, 
 if a Catholic priest were to use the most limited influence in 
 order to obtain property for the Church, they would view his 
 conduct with indignation. In the one case, the influence would 
 be for self-interest, in the other for the sake of the poor ; to 
 support schools, and chapels, and pious institutions ; yet so per- 
 verted are men^s minds by bigotry and prejudice, that the con- 
 duct of the one man would be regarded with exultation, of the 
 other with execration! Of course, people actuated by such 
 feelings, would be eager to lay hold of every pretext to place 
 peculiar and oppressive restrictions upon testamentary dispo- 
 sitions in favour of the Catholic Church in this country ; and 
 two or three cases occurred at this period which were afterwards 
 laid hold of for this purpose. 
 
 In 1847, occurred a case curiously and strikingly illustrative 
 of the Protestant prejudices against Catholic charitable bequests, 
 and the unjust operation of this prejudice as respects the doc- 
 trine of undue influence. The facts, admitted and indisputable, 
 as digested from the sworn affidavits, are as follows : — 
 
 "An old Frenchman named Carre, who had been fifty years in this coun- 
 try, had resided for twenty years at Somers Town, where he had been always 
 known as a miser, and a rich man.* He attended the Catholic chapel there ; 
 one of the priests of which, the Rev. Mr. Holdstock, who had been there for 
 twenty-five years,t had for three years past been his confessor.J On many 
 
 * Affidavit of Gasquet, a doctor, who for twenty years attended the chapel. 
 
 t Evidence of Gasquet, the doctor. 
 
 X Affidavit of Mr. Holdstock ; also of Spencer. 
 
128 HISTORY OP THE LAWS OP MORTMAIN. 
 
 occasions, between one and five years before his death, he had mentioned to 
 several persons — countrymen of his — that he had £10,000, and intended to 
 leave it all to the chapel school, or some charity,* as his only near relatives, 
 sisters and brothers, did not care for him at all, and only had written to him 
 when they heard he was rich ;t and, indeed, he hardly knew them, in conse- 
 quence of their early separation. Carre resided in the house of a person 
 named Hamilton, who had paid him great attention, and entertained expect- 
 ations of succeeding in a considerable degree to his property.§ At the com- 
 mencement of the year 1847, he was seventy-seven years old, but appeared 
 to retain still his strength and vigour.|| In February, however, he was 
 attacked by weakness, but not ly disease.'^ At that time, he possessed two 
 distinct sums in stock: one of .£3,000 3 per cent, consolidated bank an- 
 nuities ; and another of .£7,000, 3J per cent, bank annuities.** 
 
 " Up to this time, although it was well known in the neighbourhood that 
 Carr6 was very rich, his confessor, Mr. Holdstock, had not appeared to make 
 any attempt to induce him to make a will in favour of the Church ; and had 
 not, in fact, been to the house for some time. On Friday the 26th of Fe- 
 bruary, Mr. Gasquet was called in, and found him suffering only from pros- 
 tration through influenza, and requiring rather nourishing food than miedi- 
 cine.1"t The next day, however, he was so much weaker, that the doctor 
 thought that, considering his advanced age, the attack must terminate 
 fatally, though at what time was uncertain. He advised him, there- 
 fore to seek spiritual aid, and asked who his director was ; to which he 
 answered, Mr. Holdstock ; and that he would send for him.JJ He- then inti- 
 mated that he intended to leave ' something handsome^ to the schools connected 
 with the chapel. The doctor, a Catholic, observed that he ought not to forget 
 his relations. The medical man saw him again on Sunday, and he found he 
 had not sent for the priest : accordingly the doctor called on Mr. Holdstock, 
 and told him of Carry's wish to see him, and of his expressed intention to 
 leave something to the schools. Mr. Holdstock called the same day on 
 Oarr6, who told him he meant to leave £7,000 for the schools, and £3,000 
 among his relations, and desired him to act as executor and prepare the will, 
 which he declined to do, but recommended Mr. J. A. Cooke, a barrister of 
 twenty-four years standing, who had been a memher of the same congregation 
 for many years. To this Carrg assented ; and Mr. Holdstock took minutes of 
 his interitions as instructions for Mr. Cooke.|||| The next day, Monday, 
 
 * Affidavits of Augier. t Affidavit of Spencer. 
 
 X Affidavits of Spencer and Gasquet. § Affidavit of Francois Burgh. 
 
 II Affidavit of Hamilton, the landlord. 
 
 IT Affidavit of Hamilton. **' Affidavit of Hamilton. 
 
 +t Affidavit of Gasquet. Xt Affidavit of Mr. Gasquet. 
 
 §§ Affidavit of Mr. Holdstock. 
 
 III! Which before the act of Charles II (the statute of frauds) would have 
 been a valid will at common law, aU that was required being a declaration 
 of will, which might be made by word, and recorded by another party in 
 writing. 
 
IIISTOEY OF THE LAWS OF MORTMAIN. 129 
 
 Mr. Cooke at once prepared the will ; the doctor having found Carre weaker.* 
 On the evening of that day, Mr. Cooke went with Mr. Holdstock to see 
 Carr6, taking the will with him. Carrfi then repeated to Mr. Cooke the 
 intentions he had previously expressed" to Mr. Gasquet generally, and to Mr. 
 Holdstock with particularity; entering into more detailed explanations as 
 to his testamentary dispositions.t 
 
 Mr. Cooke then suggested, that the matter should he delayed a few days,% in 
 order to have it done by deed, so far as the charity was concerned, which 
 would save £700 legacy duty to the charity ;§ and also suggested, that the 
 deed should vest the stock in three trustees, of whom Carre should be one, 
 in order that he might have full control over the money so long as he lived, 
 and no one have power to receive it without his consent ; and that the deed 
 should be drawn so as to give him the dividends during life, and the stock go 
 to the charity at his death, with a clause empowering Carre to make revoca- 
 tion at pleasure. 
 
 To all this Carrg consented, and appointed Thursday, the 4th March, to 
 execute the proposed deed, and also the will leaving the £3,000 to the rela- 
 tions. On that day, Mr. Holdstock and Mr. Cooke accordingly attended 
 Carr6 with these documents, accompanied by two persons, members of the 
 congregation, to act as witnesses, — Mr. Hay, a bank clerk ■ and Miss Clarke, 
 a schoolmistress. There they saw one Brown, to them a stranger, with 
 Hamilton, the landlord, who said Carr6 was unwell and would postpone the 
 matter, and wanted to prevent his seeing them.|| Mr. Holdstock, however, 
 suspected Hamilton's secret motive,!" and insisted on seeing Carr6, who 
 said he was weak, but had not changed his intentions ; whereupon the priest 
 suggested, that if so, he had better fulfil them, as all had been prepared ac- 
 cording to his own instructions ; to which Carr6 assented; and thereupon all 
 the parties — Mr. Cooke, Miss Clarke, and Mr. Hay, with Hamilton and 
 
 * To have sent instructions to his attorney would of course have caused 
 delay and expense; and Carr6 was most penurious. 
 
 t See aflSdavits of Mr. Holdstock and Mr. Cooke, gentlemen of unim- 
 peachable character, who had been known for many years in the neighbour- 
 hood. The particularity of the directions given, sufficiently shows the per- 
 fect capability of Carre to make a wiU, and the malignancy of the calumnious 
 misrepresentations put forth to the contrary. 
 
 X This may at once refute the malicious insinuations that were published 
 as to the affair having been hurried on, or any advantage taken of the 
 testator. 
 
 § Ten per cent. See affidavits of Mr. Holdstock and Mr. Cooke. 
 
 II He had by this time become aware of what was going on, and felt that 
 the expectations he had entertained were likely to be disappointed. Doubt- 
 less, he would have deemed the testator well enough to make a disposition 
 in his favour. His motive in endeavouring to postpone the interview is 
 transparent. 
 
 T Mr, Iloldstock's affidavit. 
 
130 HISTORY OF THE LAWS OP MORTMAIN. 
 
 Brown came into the room. Hamilton, however, interfered to persuade 
 Carr6 not to proceed with the business;* upon which Mr. Holdstock re- 
 newed Ms representations of the reasonableness of proceeding, and desired 
 Brown, a perfect stranger, to withdraw, as his presence did not appear de- 
 sired by the testator.- J/r, Cooke, however, requested him to remain, and he 
 did so. Carre again assented to the matter going on, and Mr. Cooke then 
 read the deed and wUl to Carre, as he had drawn them from his own oral 
 instructions ; and Carr6 assented, with the exception that he desired to leave 
 the landlord everything he had in the house, which was done.t Mr. Cooke 
 then explained to him the legal effect of the transaction, that it would be to 
 vest the .£7,000 in his and Carry's own name with two other trustees, in 
 trust for his. Carry's, use during life, and for the charity at death ; that he 
 could revoke it by deed but not by will ; and that no one could, while he 
 lived, receive the dividends without his authority; and that a power of 
 attorney to transfer the stock into the hands of himself and the two trustees 
 would be necessary to give effect to the deed. J The three documents — deed, 
 will, and power of attorney — were then duly executed, Brown consenting to 
 he an attesting witness.^ The parties then left the room ; and Brown distinctly 
 declared, that everything had been perfectly faLr,|| Mr. Cooke taking the 
 deed and power of 'attorney with the apparent assent of the testator.TT The 
 next day, Mr. Holdstock intended to have called upon Carre as to spiritual 
 matters, imt was told by the m,edical man, who visited him daily, that he 
 was better, and might linger on for weeks.** In consequence of this, and of 
 many pressing caUs,tt the priest did not see Carre that day, intending to do 
 
 * Mr. Holdstock's affidavit, and Hamilton's. It is obvious that the land- 
 lord was trying to postpone it, and that Mr. Holdstock was desirous that it 
 should proceed : the influences were opposing ; which is strong to show free 
 will, and the exercise of option on the part of CarrS. An antagonistic party 
 was actually present, exerting himself to the utmost against the charitable 
 bequest : his motive was selfish ; Mr. Holdstock's, unselfish. 
 
 t The reader will remember how thoroughly the testator was an acting 
 and instructing party throughout. 
 
 X Let it be understood, that the stock was not to be transferred out of 
 Carre's power (during life), even if he did not revoke : no one could touch 
 the stock without his consent. It was to be retransferred into his name with 
 two others. 
 
 § An utter stranger to all the parties present except the landlord and 
 present against the will of the priest. Would he have attested, if he had 
 not seen all was right ! 
 
 II Let this be reniarked. See affidavits of Mr. Holdstock and Mr. Cooke. 
 
 K This was most proper, Mr. Cooke being trustee. 
 
 ** This is most important, with reference to the suddenness and unex- 
 pectedness of the death. 
 
 tt Every one will understand this, considering the labours of all Catholic 
 priests in this country, especially at that time of the year. Let the reader 
 mark this. 
 
HISTORY OF THE LAWS OF MORTMAIN. 131 
 
 SO on the next day, Saturday 6th March. On the morniug of that day, Mr. 
 Cooke, before leaving for town, saw the medical man, and heard of Carr6 
 /being much in the same state. 
 
 The .£3,000 were still left standing in Carifi's own name, and he, on 
 Friday, gave Hamilton a power of attorney to receive the dividends thereon ; 
 which he having presented to Carr§'s stock -broker, Mr. Crampton, that 
 gentleman called on Carr6 on the evening of that day, to satisfy himself 
 that he had leally given the power, which he did;* and, in conseq^uence, 
 Hamilton duly received the dividends on the J3,000 to the amount of ^46 ; of 
 which sum, and of the money and goods in the house, Hamilton was then in 
 possession. On Saturday Mr. Cooke effected the transfer of the ^7,000 
 stock, according to the deed, under the power of attorney, merely retransf er- 
 ring it into the name of Carre, along with himself and Dr. Griffiths as co- 
 trustees. This was before two o'clock, and about four o'clock he called at 
 Carry's, when he was told, by Hamilton, that he had died "in his arms'' 
 shortly before.J This occurred before Mr. Holdstock had called as he had 
 intended to do ;t and he had received no message requiring his attendance. 
 
 In April 1849, Hamilton, the landlord, wrote to the relations, stating, that 
 on the 4th March Carr6 had "settled his affairs and made his will" but had 
 not made such a provision for him as he had contemplated. And afterwards 
 Hamilton was a. party to the transfer of the ^£7,000 stock under the deed;^ and 
 up to this time, neither he nor the attesting witness. Brown, had done any- 
 thing to indicate an idea of the invalidity of the transaction, stiU less of its 
 unfairness, except that Hamilton continually complained that the testator had 
 not done enough for him.\\ 
 
 Meanwhile, in March 1847, Mr. Cooke had written to the family of Carrfi, 
 informing them of his death, and in June, when they came to this country, 
 he informed them of the deed of gift to the charity, with a copy of which 
 they were forthwith furnished. Previously to this, Hamilton had endea- 
 voured to induce the trustees to give him some portion of the trust-money, 
 which, of course, they declined to do, and now he attempted to make the 
 
 * The stock-broker, therefore, found Carre quite capable of disposing of 
 property, on the day after he had made the deed in question. 
 
 t The only person in the room with him was Hamilton. 
 
 J It cannot now be known whether Carre had not sent for him, or asked 
 Hamilton to send for him. From the indisposition Hamilton had shewn to 
 let the priest come, it is by no means certain that he would transmit such a 
 message. At all events, how could the priest be expected to come, unless 
 sent for, on occasion of a death occurring so unexpectedly ? And what will 
 the reader think of Mr. Bethell, the plaintiff's counsel, making it matter for 
 reproach against Mr. Holdstock that he was not present? 
 
 § By signing declarations of identity, to enable Mr. Cooke, the acting 
 trustee, to transfer the stock to the charity. 
 
 II See affidavit of Mr. Cooke, and of Spencer and Francois; also of Mr. 
 Holdstock. 
 
 k2 
 
133 HISTOKY OF THE LAWS OF MORTMAIN. 
 
 relatives conceiye they had been wronged ; and then, /or the first time, made 
 representations as to unfairness. No steps, however, were taken until the 
 year 1851, when a certain noble and learned lord took up the case,* intro- 
 duced the relatives to an attomey,t and a bill was filed in Chancery to set 
 aside the transaction. 
 
 It need hardly be mentioned that this was the year of the so 
 called "papal aggression", when the whole country was in a 
 state of anti-Catholic excitement ; and this they knew full well, 
 who, at that particular crisis, got up and brought forward the 
 case — the attorney, "out of charity" of course! — the noble and 
 liearned lord, and his friend the Whig law officer of the Crown, 
 because, as one of them said, " it was too good an occasion to 
 pass by" — that is, too good a means of keeping up the excite- 
 ment. The parties knew the validity of the documents, as to 
 their fair execution, must be determined in a court of law by a 
 jury, as had been decided in the Brindle will case; — they were 
 sure of the verdict at that time; and, as already observed, at any 
 time a Protestant jury is not a very safe tribunal to adjudge 
 upon a bequest for Catholic purposes. To make the verdict, 
 however, still more certain, to " make assurance doubly sure ", 
 some week or two before the case came on in the Court of 
 Chancery, two long affidavits of Hamilton, the landlord, and 
 Brown, his friend, were published in a London newspaper 
 through the agency of the latterj both affidavits being couched 
 in terms the most inflammatory and offensive, and conceived in 
 the most hostile spirit, and calculated to create the greatest 
 popular excitement^ (an object in which they unquestionably 
 succeeded) ; and these were affidavits of men, one of whom had 
 attested the deed, and the other had acted under it, and neither 
 of whom had ever impeached its validity until afterwards, nor, 
 publicly, until the period of this excitement, and after commu- 
 nication with the noble and learned lord, a friend of the very 
 minister who got it up. A more perfect parallel with the case of 
 Titus Gates . could hardly be conceived, except in the judge, for 
 
 * Affidavit of Metarie. 
 
 t See Skirrow's evidence, Report of Committee. He, says his firm took it 
 up " of course more out of charity than anything else." Of course! 
 
 X This was libellous, as it is not allowable to publish what does not take 
 place in open Court ; and then both sides should have feir play. 
 
HISTORY OP THE LAWS OP MORTMAIN. 13^ 
 
 he was Lord Cranworth, the very judge who^ as Baron Rolfe, 
 had tried the Brindle will case — a judge singularly clear-headed 
 and calm-minded, superior to prejudice, and incapable of par- 
 tiality. The case came, however, before him only incidentally, 
 by reason of a motion to bring the money into court ; which the 
 defendants could have agreed to as of course, had they not been 
 desirous of vindicating their characters by filing afiSdavits in 
 answer to those which had thus been improperly printed. With 
 this view the case was argued, although Lord Cranworth re- 
 peatedly intimated, that he could not possibly decide the merits 
 of the case. The occasion was made use of to the utmost by 
 the plaintiff's counsel to dress up the case with all the arts of 
 rhetoric, and it created an immense sensation, being published at 
 the fullest length in all the papers. When, however, the defend- 
 ants' counsel (the present Vice-Chancellor Stuart) spoke on their 
 behalf, their argument was not allowed to go before the public, 
 except in the most curtailed form, and their affidavits not at all. 
 Nevertheless, so confident were the defendants in their cause 
 and in the judge, (for Lord Cranworth is one in whom every 
 Catholic in the realm could place implicit confidence), that if he 
 had possessed the power of deciding the case, his decision would 
 have been confidently anticipated in their favour, and most 
 certainly they would have pressed the case to a final issue. But 
 alas! they knew, as did their opponents, that Lord Cranworth 
 would have had to remit the chief question to a jury, and that 
 the plaintiff would probably have brought the action in the 
 Queen's Bench, and that it would have been tried by Lord 
 Campbell and a London jury. There was, therefore, no alter- 
 native but a compromise; yet, even under such a pressure, the 
 defendants refused to assent to it, except upon the terms of the 
 plaintiffs' affidavits being taken off the file of the court, as a 
 withdrawal of all imputations upon the moral fairness of the 
 transaction. And this was done : and a deserving charity was, 
 by such means, by such a combination, and under such circum- 
 stances, rohhed of one half of an endowment obtained in a 
 manner as utterly unimpeachable in a legal, as it was allowed 
 to be in a moral point of view; the preponderance of the evi- 
 dence being overwhelmingly in favour of its perfect correctness.* 
 
 * The case set up for the plaintiflf was, that when Carre executed fch«i 
 
134 HISTORY OF THE LAWS OP MORTMAIN. 
 
 It would be hard to imagine any case more utterly unassail- 
 able, or which it would be more impudent to impeach.* A 
 
 documents, he thought they were only a wiU (in two parts), and power of 
 attorney to receive the next dividends (How consistent this is with the fact 
 that the next day he signed powers of attorney for this purpose !) ; and that 
 he could easily make the, disposition by any subsequent will, which he in- 
 tended to make for that purpose ; and that, notwithstanding he was under 
 this impression, he yet executed the documents with great reluctance and 
 unwillingly (How so, if he thought they only amounted to a will, which he 
 could revoke half a dozen times, and a power to receive the next divi- 
 dends ? One part of the story destroyed the other. If he executed so un- 
 willingly, it could have been only because he knew he altered the state of 
 his property during his life ; if he thought it was only a will he executed, 
 why was he so unwilling X) — and only under the influence of the priest. The 
 only witnesses produced to support the case, were Hamilton, the landlord, 
 who was labouring under extreme disappointment at not having succeeded 
 to so much as he expected of the testator's property, and was contradicted 
 on all material points by several other unimpeachable and disinterested 
 persons (See affidavits of Mr. Holdstock, Mr. Cooke, Mr. Gasquet, and Miss 
 Clarke) ; and Brown, the attesting witness to the very document he came 
 forward to impeach. On the other hand, in defence of the transaction, there 
 were the affidavits of Mr. Holdstock, a priest of twenty-five years standing ; 
 of Mr. Cook, a barrister of twenty -five years standing; of Miss Clarke, a 
 venerable lady, who had, for a great part of half a century been occu- 
 pied in tuition ; and a fourth respectable person — all present at the time of 
 the execution of the document; along with Mr. Gasquet, the medical gentle- 
 man, of thirty years standing, and several other witnesses, already referred 
 to, as to the mental and physical condition of the testator, and his previous 
 intentions to make such a disposition of his property as was made by the 
 deed in question. 
 
 * Let the following recent cases be considered, in which the Courts had 
 to deal with alleged undue influence, exercised by persons /or their own per- 
 sonal advantage; where surely the rule ought to be stricter : — 
 
 " Testatrix being of the age of eighty-four, and, as alleged, of feeble and 
 impaired mind^ gave to her medical attendant (a stranger to her in blood, 
 but in whose house she resided) the bvlk of her property, appointing him sole 
 executor and residuary legatee. The will was executed in his house, prepared 
 by his attorney, and at variance with her previous testamentary dispositions, 
 which were in favour of relations. The Prerogative Court, however, being 
 satisfied of the testamentary capacity of the testatrix, and upon the balance 
 of evidence negativing alleged fraud, admitted the will to probate. On ap- 
 peal, sentence affirmed by Privy Council." — Barnes v. Vincent, 5 Moore's 
 Privy Council Cases, 201 ; 10 Jurist, 233. 
 
 "Testatrix had promised to benefit the family of C. shortly before her 
 
HISTORY or THE LAWS OF MORTMAIN. 135 
 
 testator, possessed of j810,000, chooses to leave £3,000 to his 
 brothers and sisters (who resided at a distance from him, and 
 who, as appears, had done nothing 'for him), and £7,000 to the 
 schools of the chapel at which he attended. What disposition of 
 his property could be more perfectly proper and fair. How 
 could it be possible to impeach it, consistently with the rights of 
 property ? 
 
 At that period, however, any case would do to excite the 
 popular clamour, and another case of a similar character was 
 brought up in the same way,* and a Catholic permitted the 
 feelings of a disappointed expectant, to induce him to come 
 forward, and hold up to reprobation the conduct of his own 
 parent, his own priesthood, and his own bishop ! 
 
 death; nevertheless, made a codicil giving a third of the only sum of money 
 at her disposal to her solicitor, who drew the codicil, and was made sole ex- 
 ecutor. Held that the evidence showed that the testatrix was aware of the 
 contents and effect of the codicil; and as her capacity was unimpeached, the 
 codicil was deemed entitled to probate." — Clearson v. Teag%e, 18, Law 
 Times, 175. 
 
 Even when there are circumstances of suspicion attending the execution 
 of a testamentary paper, as where the party propounding it for probate is 
 personally benefited, and had it executed at a time when the testator was 
 supposed to be dying, the Court only requires proof that the testator was 
 aware of the contents of the paper, and approved of it. — Michell v. Thomas, 
 12 Jurist, 697, Privy Council Cases. 
 
 It has been held lately by the House of Lords [dissentientihus Lord Cot- 
 tenham, Chancellor, and Lord Langdale, M. R.) that the Ecclesiastical 
 Courts — and, on appeal, the Privy Council- -are the proper tribunals upon 
 a question of undue influence in a will of personality, and that the Court of 
 Chancery has no jurisdiction. — Allen v. Macpherson, 1 H. L. Cases, 191, 
 Jurist, 785. 
 
 * In 1846, Mr. Taylor, of Weybridge, left a house to his eldest son abso- 
 lutely ; and all his personal property (subject to a life interest of his other 
 children) ; and left the residue of his property to his children for life, and at 
 their death to the vicar-apostolic of the London district. The testator died 
 about a year after the will, and the eldest son chose to feel aggrieved at this 
 disposition of the property, as a " disinherison" ! though the brothers and 
 sisters, so far from so considering it, were perfectly satisfied. It is to be re- 
 marked, that he admitted that his father had intimated to him that it par- 
 took rather of the character of restitution than of charity; which at once 
 accounts for their satisfaction, and rendered his dissatisfaction, upon Catholic 
 principles, peculiarly painful. 
 
136 HISTORY OF THE LAWS Or MORTMAIN. 
 
 This was an opportunity not to be allowed to pass by the 
 opponents of popery, and it was improved to the utmost. It 
 was resolved, under the pretence of another committee on the 
 law of mortmain, to institute an inquisitorial inquiry into the 
 testamentary dispositions of property for Catholic purposes, and 
 create as much prejudice as possible against the Catholic re- 
 ligion, in order to pave the way for some alteration of the law 
 unfair and oppressive as towards it. 
 
 The design was conceived and executed with equal cunning and 
 success. On the 16th April, 1851, Mr.,Headlam, at one o'clock 
 in the morning, in an empty house on fhe point of adjourning, 
 moved for a. Committee " To consider the propriety of extending 
 the law of mortmain, so as to include personal estate, and gene- 
 rally to consider whether any alteration should be made in the 
 law as it affects testamentary or other dispositions in favour of 
 religious, charitable, or permanent objects."* There was nothing 
 in the terms of the motion to awaken any suspicion of its real 
 intention, and it passed sub silentio. On the 2nd May, or rather 
 on the 3rd, for it was at one o'clock on Saturday morning, Mr. 
 Headlam moved to nominate the committee. 
 
 " Mr. Headlam, Mr. Attorney-General, Lord J. Manners, Mr. Hutt, the 
 Earl of Arundel, Mr. Pitzpatrick, Mr. Roundell Palmer, Mr. Heald, Sir R. 
 H. Inglis, Lord Harry Vane, Mr. Wm. Marshall, Mr. Anstey, Mr. Shafto 
 Adair, Mr. Hardcastle, and Mr. Drummond." 
 
 Up to this time, nothing had transpired to arouse any appre- 
 
 * It will be observed, that though the terms of the motion were artfully 
 drawn, so as to have as wide a scope as possible, and with this view the 
 words were "testamentary or other dispositions"; yet, fairly construed, ac- 
 cording to the common rule that general words have reference to particular 
 ones, so as not to extend beyond the scope they point out, the clear meaning 
 of this was — " dispositions testamentary, or to take effect at death"; which 
 were the only dispositions included in the law, the propriety of extending 
 which the Committee was appointed to consider : jnd thus, therefore, they 
 would have lio right to inquire into any other dispositions. But be that as 
 it may, no one can deny that the whole scope of these terms points purely 
 to the acquisition of property for religious or charitable uses, not the ad- 
 ministrMion of it to those uses. Yet, it wiU be found that the whole scope 
 of the Committee's inquiry was directed to the latter subject; so that it 
 cannot be questioned this was the real and secret purpose of some of the 
 promoters, especially Mr. Anstey. 
 
HISTORY OF THE LAWS OP MORTMAIN. 137 
 
 tensions as to the secret design of the promoters. The appoint- 
 ment of Mr. Anstey,* along with Mr. Drummond and Sir R. 
 Inglis, however^ awakened suspicions, which were soon increased 
 when the committee commenced proceedings. On the 19th May, 
 Mr. J. O'Connell moved that Mr. Monsell, Mr. Napier, and 
 Mr. Keogh, be added to the committee. 
 Mr. Headlam said that — 
 
 " The committee was not intended to be directed against any religion. He 
 thought, however, that a Roman Catholic member ought to be on it, and he 
 had nominated the Earl of Arundel and Surrey. There was a general rule 
 
 * This gentleman may here be allude^ to, as having shown by his 
 conduct on the Committee that he obtained its appointment with a view to 
 the consideration, not so much of the acquisition of property for pious pur- 
 poses, as to its administration for such purposes. This was disclosed by 
 him in the evidence, which with considerable eagerness he volunteered, 
 and with such eagerness, as to make many persons suspect that one great 
 object in getting this committee was, to place upon record his representa- 
 tion of the quarrel, and lend circulation to his statements, as prejudicial as 
 possible to his own bishop. The fact was, that some years previously, a very 
 valuable measure for thi»administration of Catholic charitable trusts had 
 been prepared, under the auspices of the bishop, and would certainly have 
 passed, but that Mr. Anstey made representations at Rome as to its character, 
 which induced the Holy See to hesitate in assenting to it until the fiappy 
 opportunity was lost. The ground on which these representations proceeded 
 was, that the Catholic laity were jealous of any administration by their 
 bishops of funds devoted to religious trusts : — a representation untrue, and 
 which, if it had been true, must have been discreditable, as the feeUug 
 it implied the existence of — a distrust of the bishops — was deprecated in the 
 apostolic age as utterly uncatholic (see note ante, p. 2). Thisi feeling may 
 or may not have existed in the mind of Mr. Anstey ; at all events, Mr. 
 Anstey's object was (as he himself said), "that the Courts of the country 
 should alone have the authority to control those who were charged with 
 their administration". Of course this was very natural on the part of one 
 who practised in those Courts; but it was more characteristic of a lawyer 
 than a Catholic, seeing that those Courts have, as in these pages has been 
 amply proved, for centuries treated Catholic charities with persevering injus- 
 tice, and all charity with marked enmity. The Court of Rome, temporarily 
 misled by Mr. Anstey, soon found that (in the language of the cardinal) 
 " Inimiciis homo hac fecit"; but when — too late — convinced of this, of 
 course its opinion altered. Now, Mr. Aiistey endeavoured to avail himself 
 of the opportunity afforded by this Committee, to support his views as to the 
 administration of charitable trusts ; into which, however, the Committee had 
 no right whatever to enter, as it was utterly irrelevant to the question sub- 
 mitted to them for inquiry. 
 
138 HISTORY OF THE LAWS OF MORTMAIN. 
 
 this session that the committees should only consist of fifteen members; he 
 had not himself any objection to the members proposed." 
 
 Sir G. Grey said — 
 
 "The rule ought to be adhered to unless where special circumstances ren- 
 dered it advisable to depart from it ; and in this case he saw none." 
 
 The Earl of Arundel said — 
 
 " There were special circumstances requiring that another Roman Catholic 
 member or two should be upon the committee,' since the law of mortmain 
 was very much connected with the Roman Catholic religion, and he himself 
 had not been able to attend the committee in consequence of attendance on 
 a railway committee." 
 
 Mr. J. O'Conliell said that— 
 
 " The member for Youghal (Mr. Anstey)* was not considered as at all 
 representing the Roman Catholic interest on the committee. He hoped that 
 a mere formality would not, under these circumstances, interfere with justice." 
 
 Lord J. Russell — 
 
 " Had no objection, to the name of Mr. Keogh instead of the Earl of Arun- 
 del." 
 
 Mr. Keogh— 
 
 "Would prefer that Mr. Napier and Mr. Monsell should be appointed. 
 The member for Youghal was not an Irish, but an English barrister. Some 
 cavalry officers were actually upon the committee! And he thought the 
 members proposed far more fitted for its labours." 
 
 However^ on a division, the motion was negatived by a majo- 
 rity of ninety-four to thirty-eight. Mr. Keogh was then, by 
 consent, substituted in the room of the Earl of Arundel. 
 
 It will be observed that the chairman of the committee pledged 
 himself before the House of Commons to this, — that the com- 
 mittee was not intended to he directed against any religion. It 
 is unnecessary to remind any one of that which is now noto- 
 rious, that the committee was directed against the Catholic reli- 
 gion, and, it is clear, from the first was intended to be so. 
 Throughout its proceedings were marked by the most eager 
 anxiety to cast odium upon, and excite prejudice against, the 
 Catholic Church, and two-thirds of its proceedings were devoted 
 to this purpose, and formed a forcible commentary on the re- 
 markable query of the Orange Recorder, addressed to the Pro- 
 
 * See note p. 137. 
 
HISTORY OF THE LAWS OF MORTMAIN. 139 
 
 testant Bishop of London : " Can you devise any means to pre- 
 vent the spread of the Roman Catholic religion ?" Probably a 
 more complete deception was never practised than in the appoint- 
 ment of this committeCj as far as the Catholic members were 
 concerned ; nor was greater injustice ever committed than in 
 its proceedings. 
 
 The committee commenced its proceedings on the 12th May, 
 when Mr. Chapman and Mr. Shelford were examined upon that 
 which, nominally and properly, was the subject of their investi- 
 gation — (the law of mortmain and the act of George II) — both 
 of them being opposed to the law as it stands. 
 
 At the very next sitting the committee eagerly took up that 
 which was the real but secret object of their appointment; and 
 Mr. RiddeUj a Catholic gentleman, who had long carried on a 
 dispute with his bishop, was introduced by Mr. Anstey, who 
 was in a similar position, and had, probably, a perfect fellow- 
 feeling, such as inspires a secret sympathy and unity of purpose. 
 What that purpose was, may be easily divined ; suffice it to say 
 that nine-tenths of the examination of Mr. Riddell, during 
 two days, was du'ected not to the subject to inquire into which 
 the committee were appointed, namely, testamentary disposi- 
 tions of property for pious purposes, but the administration of 
 such property when acquired ; and examinant and examiner 
 equally laboured to throw odium upon the Catholic prelates in 
 respect to their conduct in regard to the administration of Catho- 
 lic religious trusts. Nay, the examination actually travelled 
 into other topics still more irrelevant, as, for instance, some 
 alleged interference of the Propaganda in disputes between the 
 Catholic prelates and priests, or laymen, upon the subject.* 
 
 * And how- utterly irrelevant the examination was, as well as the parties 
 by whom, and the purposes for which, it was pressed, may be perceived by 
 the following significant entry in the minutes of the proceedings : — 
 
 " The question having been put, ' What is the condition of the Roman 
 Catholic clergy, with respect to this question, who do not take the oath of 
 obedience?' and answer having been made, 'I imagine that they are subject 
 to the canonical law of the Roman Catholic Church, which requires that a 
 canonical offence should be committed before they can be visited with any 
 censure, an objection was taken by Sir B. Inglis to the course of examina- 
 tion. Motion made and question proposed (by Sir R. Inglis) that the ques- 
 tion and answer be expunged. Question, 'that the question and answer 
 
140 HISTORY OF THE LAWS OF MORTMAIN. 
 
 Not only was this the case with respect to the greater part of 
 Mr. Riddell's evidence, when examined by Mr. Anstey, but Mr. 
 Anstey himself, in his eagerness to make out the case he sought 
 to establish, volunteered to be examinant as well as examiner, 
 and himself gave lengthy evidence on the same subject, utterly 
 irrelevant to the inquiry. 
 
 If it seem surprising that such a course should have been 
 connived at by the respectable portion of the committee, let it 
 be recollected, that during the time they were sitting, the debates 
 on the Ecclesiastical Titles' Bill were proceeding, amidst all the 
 excitement it occasioned, and in which, each night, the members 
 who sat'Upon the committee shared. This, as already has been 
 observed, had been well calculated upon by the promoters of 
 the committee ; and they made use of it, first, to secure a Pro- 
 testant committee, with the secret design of directing it almost 
 entirely against the Catholic Church ; and next, to execute this 
 design with a perfect disregard of the proper purpose of their 
 appointment, or of the plainest rules of justice. On the fourth 
 day of their sitting, however, when, after Mr. Riddell, Mr. 
 "Wall, the nephew of the Protestant Archbishop of Armagh, 
 Dr. Whately, had been examined, the course which the com- 
 mittee was taking was so hostile to the Catholic Church that 
 its secret object was suspected; the only Catholic member, the 
 Earl of Arundel, not having been able to attend at allj the 
 addition of some. Catholic members was urged in the house, but 
 neither side would listen to the suggestion, the chairman dis- 
 tinctly declaring (as we have seen), that the inquiry was not di- 
 rected against any religion (an assertion, it is not easy to see how 
 he could reconcile, without some curious mental reservation, with 
 perfect sincerity), and so all that could be obtained, as already 
 observed, was the substitution of Mr. Keogh for the Earl. That 
 talented gentleman, it is needless to say, did Jbis best with his 
 usual spirit; but what could he do among so many? There never 
 
 stand part of the eTidence', put. The Committee divided. Ayes, % — Mr. 
 Anstey, Mr. Drummond. Noes, 5 — Lord J. Manners, Sir E.. Inglis, Mr. 
 Heald, Mr. Marshall, Mr. Hutt." 
 
 This specimen will suffice to show the spirit and the object with which, on 
 the part especially of certain members of this Committee (one of them a 
 Catholic), the inquiry was carried on. 
 
HISTORY OF THE LAWS OF MORTMAIN. 141 
 
 was a more monstrous mockery of justice, or rather, never a 
 more monstrous piece of injustice, than was displayed in the 
 committee during the remainder of its sitting that session. 
 
 The examination of Mr. Wale is worthy of special attention, 
 not only generally as illustrative of this, but also as revealing 
 the crafty conspiracy which had been concocted against the 
 Catholic Church, and the unscrupulous means which had been 
 employed to carry it into execution. This Mr. Wale, nephew of 
 the Archbishop of Dublin, had obtained, from the register of 
 that arch-diocese, assistance in looking through a number of 
 wills there registered, in which legacies had been left to Catholic 
 priests; and he actually acknowledged two things, that he had 
 only taken notes of Catholic wills, and that he had confined 
 himself to those in which the death of the testator had taken 
 ^ place soon after the date of the will. His obvious design was, 
 to make out a sort of "case", from instances selected with 
 such obvious unfairness, as to the supposed propensity of 
 Catholic priests to practise with dying persons to procure be- 
 quests for themselves or for the Church. It need scarcely be 
 added, that neither this person nor the committee ever dreamt 
 of giving any notice to the clergymen implicated, or eren of 
 applying for information to them to explain the circumstances 
 of each case. The injustice and indecency of this seems to have 
 occurred to the mind of Lord H. Vane, who asked: — 
 
 " Have you any knowledge of the degree of relationship of the legatees ? 
 — None whatever. You made no inquiries with reference to the degree of 
 relationship 1 — I did not: I found it impracticable. (!) You can furnish no 
 information as to whether the testatrix had any relations living? — No : I 
 cannot." 
 
 It need not be said, that this destroyed all the value of the 
 evidence, even as ex parte evidencej but the intrinsic worth- 
 lessness of such evidence may be surmised from his having 
 the hardihood to say that he found it impracticable to make any 
 inquiries as to the relationship of the legatees, when he v?as 
 reading copies of the wills with the names and addresses of the 
 priests whose conduct he was impeaching, and of whom several 
 were some of the most eminent and well-known priests in Dublin! 
 It was, perhaps, with some idea of this kind in his mind, that 
 Lord J. Manners asked him, — " Have you the names of the wit- 
 
142 HISTORY OF THE LAWS OF MORTMAIN. 
 
 nesses?" to which the answer was in the affirmative. The 
 flagrant unfairness of this proceeding was evidently apparent 
 even to the promoter of the committee. The chairman himself 
 asked : — 
 
 " Can you give the committee any idea out of how many wills these were 
 extracted % — I have great difficulty in answering that : I desired the registrar 
 to select such wills as he thought bore most upon the point." 
 
 What was meant by this (on which the chairman of course 
 prudently forbore to press the witness) was casually elicited by 
 another question. 
 
 " With what view was the inquiry instituted 1 — My idea was, that if 
 there were many wills of this description, it would certainly lead to the 
 necessity of extending the law (of George II) to personality. That was 
 your object? — Yes." 
 
 Lord H. Vane now asked: — 
 
 " The wills you have referred to are entirely of Roman Catholics : were 
 there any wills of Protestants among the wills produced to you 1 — I did not 
 give the registrar any instructions at all about any particular sect ; he was 
 to search out for wills with a view solely to this point." 
 
 This reply did not satisfy Lord H. Vane, who asked again: — 
 
 " You did not make any further inquiry into the cases, beyond the parti- 
 culars you have given to the Committee? — No, I did not." 
 
 Even Mr. Anstey was ashamed of this, and asked ; — 
 
 " Did the registrar tell you there were no wills of that description made 
 by Protestant testators 1 — No, he did not ; and I did not put the question to 
 him"! 
 
 It is pretty plain, that a less scrupulous scheme to "make 
 out a case," never was conceived. What will the reader say, 
 when he finds that the prime mover in it was the most reverend 
 uncle of this conscientious witness — the Protestant Archbishop 
 of Dublin. In his examination he happened to observe : — 
 
 " I think, from the cases which have been brought before me, and some 
 similar which have been collected by my registrar, that farther restriction 
 would be desirable." 
 
 Upon which, the question is asked : — 
 
 " The Committee are to understand, that the cases submitted to them by 
 Mr. Wale, were the cases to which your grace refers as having been collected 
 by your registrar 1 — Yes." 
 
 Thus, the Protestant prelate, who, with his colleagues, was 
 
HISTORY OP THE LAWS OF MORTMAIN. 143 
 
 living, as Earl Grey declared last session, upon the property 
 which had been accumulated by Catholic piety, and had been 
 unrighteously transferred from the Catholic Church to the Pro- 
 testant, had been .secretly seeking, by means such as these, to 
 deprive the Church, upon the plunder of which he is supported, 
 of the small support which the charity of her children conferred, 
 and had been a party to this unscrupulous selection of cases, 
 studiously chosen on account of their having (as the witness 
 said) a suspicious appearance, and carefully brought forward 
 without affording to the parties implicated any opportunity of 
 explaining the circumstances! It is as well to close the story of 
 this most nefarious proceeding by stating, that the Committee 
 hastened to publish the ex parte evidence thus presented with 
 such gross injustice, without permitting the parties whose con- 
 duct was impugned, any opportunity of being previously exa- 
 mined, so that their explanations might be published at the same 
 time; and thus they laboured for a whole year under imputa- 
 tions which, next session, when they appeared before the 
 Committee, were proved to be utterly groundless, and without 
 the shadow of foundation ! In no single case did any undue 
 influence appear ; in no case had relations been disregarded ; 
 not one will was impeachable : the Committee clearly perceived 
 every case had been explained; and yet, to consummate their 
 iniquity, and put the seal upon their injustice, they refused to 
 insert a paragraph in their report, relieving the parties from 
 imputations thus proved groundless ! Probably no transaction 
 more flagrantly unfair was ever perpetrated. 
 
 The next transaction, however, surpassed it, if possible, in 
 shameless injustice and studied unfairness. The Brindle will 
 case was ten years old; one or two of the principal parties had 
 died; the Committee of 1844 had been ashamed of having en- 
 tered into it, and had half apologized for publishing any of the 
 evidence about it. But the Committee of 1853 resolved to stick 
 at nothing, and, eager to rake up anything likely to arouse popu- 
 lar prejudices, entered into it again; and without even exa- 
 mining any of the parties, but going only by hearsay, and 
 the second-hand, unsworn, one-sided evidence of the attorney 
 for the suitor! One should suppose that nothing could surpass 
 this. But the Committee went below even this, and found 
 
144 HISTORY OF THE LAWS OF MORTMAIN. 
 
 " beneath this lower depth a lower still " of gross and grievous 
 injustice. They permitted this plaintiff's attorney, not only, ten 
 years after he had, in open court, withdrawn his charges, to rip 
 them up again, and speak, without any obligation of an oath, 
 against the defendants, in their absence, and withoijt their, 
 having any opportunity of answering him; but they actually 
 allowed this man (and he had the audacity to do it !) to set his 
 unsworn statements against the sworn evidence of one of them, 
 whose mouth was sealed hy death; and not onlyso, but to im- 
 peach his personal character, and to impute perjury to a deceased 
 Catholic priest, one of the most pious and scrupulous that ever 
 lived ! 
 
 After this, of course, it was impossible for the Committee to 
 descend lower in moral injustice, or to perpetuate injury any 
 fouler or more unfair. If it were possible, their conduct with, 
 respect to the case of Carre would have been the instance. In 
 that case, they pursued a similar course, which, while on the 
 one hand, it had this mitigation, that the case was more 
 recent; on the other hand, had some special circumstances 
 of aggravation. They called before them, as in the former case, 
 the plaintiff's attorney, and permitted him to give his unsworn 
 version, from hearsay, instead of procuring the sworn evidence 
 in the case. Nor is this all ; the reason why they pursued this 
 flagitious course was still more flagitious. The Attorney-General 
 was party to the suit, and his counsel had certified or intimated 
 to the Chairman, that it would not suit their purpose to call the 
 principal witness on the part of the plaintiff; so had his evi- 
 dence been shaken by the counter evidence in the case. Shrink- 
 ing, therefore, from either calling the plaintiff's witnesses, or 
 from procuring the affidavits on both sides, as they preferred 
 taking the exparte, partial, heated, unsworn, hearsay evidence of 
 the plaintiff's attorney, who was permitted, moreover, to repeat 
 charges he had been compelled to retract in court, as the condition 
 of a compromise, which, even on those terms, would never have 
 been assented to by the defendants except under the greatest 
 possible pressure. The defendants declined to agree to a com- 
 promise except upon the condition of a withdrawal of all imputa- 
 tions upon their conduct, to which the plaintiff's attorney had 
 agreed. The Court had not deemed it necessary to do as it 
 
HISTORY OF THE LAWS OF MORTMAIN. 145 
 
 was bound to do, according to the common course, if it were 
 necessary to direct the law officers of the Crown to pursue the 
 case J the Benchers of the Ipn to which Mr. Cooke belonged, 
 were equally bound to investigate the case, and to take steps 
 upon it if anything improper appeared in it. The Committee 
 were aware of all this, yet they allowed the plaintiff's attorney 
 to re-open the case j and he had the unfairness to repeat, and 
 they the injustice to record, a most heated and highly -coloured 
 version of the case, reiterating the very charges he had retracted. 
 Of course his statements, made, as may be imagined, without 
 much delicacy, contained the substance of all the representa- 
 tions on the part of the witnesses for the plaintiff, whom the 
 Committee shrank from calling, and whose statements had been 
 made under such circumstances as already alluded to, and con- 
 tradicted in every material particular by witnesses equally unim- 
 peachable and disinterested. To have the appearance of equity, 
 the Committee called Mr. Cooke, the principal defendant, the 
 acting executor and trustee; but, as he was a man of conscience, 
 and, therefore of course, only stated what he knew of the case, 
 and they declined, although they had the affidavits before them, 
 either to allow any of them to be read (preferring unsworn to 
 sworn evidence), or to call any of the witnesses for the defend- 
 ants; the practical result was, that the case went forth upon 
 the plaintiff's representation of it, at least upon all the most 
 important portions — the capacity of the testator, his previous 
 intentions to make the disposition of stock in favour of the, 
 charity, the suddenness and unexpectedness of the death, and 
 so on; on which, Mr. Cooke, in vain, appealed to them either 
 to read the affidavits of two perfectly impartial persons, and the 
 most unexceptionable witnesses — the medical man and the 
 venerable lady who had attested the deed; or to call them up 
 for examination. The Committee declined either course, and 
 sent the case forth, as far as they were concerned, in a manner 
 studiously unfair. 
 
 In pursuance of the same policy, Mr. Trappes was called 
 and examined by Mr. Anstey, with the same object as Mr. 
 Riddell ; solely with a view to cast discredit on the conduct of 
 the Catholic episcopate in regard to the administration of pro- 
 
146 HISTOKY OP THE LAWS OF MORTMAIN. 
 
 perty for pious purposes^ almost the whole of the examination 
 being utterly irrelevant to the proper subject of the inquiry — 
 the testament-ary disposition of property for such purposes ; and 
 a great deal of which wandered as far as the Propaganda ! The 
 only passage in it which was at all pertinent, (except one, in 
 which he was distinctly contradicted) was one in which he 
 stated, what every Catholic of course knows, that it is not 
 according to the rule of the Catholic religion to solicit dying 
 men for legacies to priests; and he cited a decree of the Council 
 of Trent against importunas et illiberales extremos rerum ex- 
 actiones; so that the only part of his evidence, not irrelevant 
 to, was destructive of, the views of the promoters of the Com- 
 mittee. 
 
 Of a similar character (only more ridiculously irrelevant) was 
 the evidence of Mr. Mahoney, who was not asked as to his pro- 
 fession (a remarkable exception to the regular rule), probably 
 because the reply would not have particularly enhanced the 
 value of his evidence, of which every word was utterly irrelevant 
 and impertinent to the subject matter of inquiry, relating as it 
 did to the conduct of the Propaganda, and the mismanagement 
 of certain Roman hospitals; the marked enmity of its animus 
 being alone enough to deprive -it of all value, even had it been 
 as relevant as it was the reverse. 
 
 Mr. Anstey then volunteered a long story about the admin- 
 istration of charitable trusts; from which it could be collected, 
 that the Catholic community had been deprived, by his repre- 
 sentations at Rome, of a very valuable measure on that subject 
 which, so long ago as 1846, had been prepared under the auspices 
 of the Catholic bishops in this country, and that he retained 
 strong feelings of personal resentment against his bishop and 
 primate. To support his own views against the prelate who 
 had opposed his representations, Mr. Anstey suggested; that 
 he should be summoned and examined. Such a course was obvi- 
 ously unnecessary, and must have been intentionally offensive, 
 since the cardinal was scarcely likely to have had axij personal 
 concern in any " testamentary dispositions," and would, there- 
 fore, be unable to state any of the circumstances attending them, 
 which, alone, could have been within the scope of the Com- 
 mittee's inquiries. They were well aware of this, and therefore 
 
HISTORY or THE LAWS Of MORTMAIN. 147 
 
 the Chairmarij and Mr. Anstey, had continued to make the 
 inquiry devaricate as far as possible from its proper purpose, and 
 diverge into the administration of charitable property.* 
 
 The cardinal's attention had not been directed to the terms 
 of the Committee's appointment, which applied only to the tes- 
 tamentary disposition of property for pious uses, not its admi- 
 
 * In answ.er to thie chairman's note of summons, the cardinal wrote thns : 
 " I beg respectfully to express the strong objection, or rather repugnance, 
 which I naturally feel, under present circumstances, to appear in any public 
 manner. I will rely upon your own good feelings for understanding the 
 grounds of this objection; I content myself with expressing a hope that the 
 courtesy will be extended to me, which I understand is usual, of not exacting 
 attendance for examination,jivhere there is a strong feeling of objection on the 
 part of the person summoned." It is to be recollected, that the Ecclesiastical 
 Titles Bill was pending at this time in parliament, and the most powerful 
 means had been taken to excite public prejudice against the cardinal ; which 
 rendered it very disagreeable for him to appear in public. And his evidence 
 could not possibly be relevant, except so far as it might consist of mere 
 matter of opinion or argument, or a witness qualified from his position and 
 acq^uirements to speak as to the policy of the law : a species of evidence 
 which, as his eminence most justly observed, is rather invited than enforced. 
 His eminence added : — " Mr. Keogh has kindly undertaken to convey ver- 
 bally my sentiments on this head ; and I trust that the public interest may be 
 served as well, or better, by other means, than by my personal evidence." 
 
 One woxild have thought that this appeal to the courtesy of the Committee 
 would have been cordially responded to. We read, however, in their Minutes, 
 " The Committee deliberated"; and the result of their deliberations is thus 
 stated : — 
 
 " Resolved — That the chairman be directed to write to Dr. Wiseman in 
 the following terms : — 
 
 " Right Rev. Sib, — I am directed by the Committee to express their 
 regret that, under present circumstances, you feel so strong a repugnance to 
 give evidence before them ; but at the close of your letter you state a hope 
 that the public interest may be served as well, or better, by other means. I 
 am further directed by the Committee to inquire, whether you desire to 
 suggest any other person, possessing similar information to yourself, who 
 would not feel the same objection to appear before the Committee. 
 
 (Signed) " J. E. Headlam. 
 
 " The Right Rev. Dr. Wiseman." 
 
 At the next meeting, we find the reply of Cardinal Wiseman read, sug- 
 gesting that Mr. Harting should be called : — " Mr. Harting is my solicitor, 
 and in that capacity has had the drawing of all deeds connected with the 
 administration of Catholic property in London." 
 
 l2 
 
148 HISTORY OF THE LAWS OF MORTMAIN. 
 
 nistration to such uses; which was therefore not at all within 
 the scope of their inquiry. They had no authority whatever 
 to examine either the cardinal or his attorney upon that subject, 
 but only as to the acquisition of such property, and as the 
 former had no personal knowledge on that head, they had no 
 authority to examine him at allj and their presuming to summon 
 him was a piece of pure impertinence. Their accepting of his 
 solicitor as a substitute, was only, as the sequel shewed, with the 
 design of making it a pretext for pressing the appearance of the 
 cardinal, and at the same time shews, that they had no just 
 right or reason to call for him ; for three-fourths of the exami- 
 nation of Mr. Harting, in the place of the cardinal, was irrele- 
 vant, relating to the administration of charitable trusts, and the 
 rest was of such a character as could not have been given by 
 the cardinal. One or two questions and answers conclusively 
 show that there could be no right to call for the cardinal : — 
 
 "Do you know any other instances (i.e. except that of Mr. Taylor, in 
 which the property was left to the cardinal's predecessor), where property 
 has been left to him in that way 1 — No such property has ever been left to 
 Cardinal Wiseman. Do you know of any instance of property left to his 
 predecessor, of which he has now the administration? — I have no doubt 
 there are such instances." 
 
 Then, as the cardinal had not had property left to him for cha- 
 ritable purposes; and, as the only subject of the Committee's 
 inquiries was testamentary dispositions of such property, and his 
 eminence could give no evidence on the only subject they had 
 a right to inquire into, they had no right to call him. To call 
 him, however, they were resolved, and the occasion they seized 
 for the purpose was this question : — 
 
 " Will you state the nature and amount of the property which , is now 
 held in trust for Roman Catholic purposes 2" 
 
 What right had the Committee to ask such a question, their 
 appointment having been — 
 
 " To consider the policy of extending the law of mortmain (the act of 
 George II against dispositions of property by last will and testament, or to 
 take effect at death), and generally to consider whether any alteration should 
 be made in the law as it affects testamentary or other dispositions in favour 
 of religious, charitable, or permanent objects." 
 
 True, the words " or other " had been artfully inserted in 
 
HISTORY OF THE LAWS OF MORTMAIN. 149 
 
 order to hoodwink the House, and make the purview of the in- 
 quiry as wide and vague as possible, but, construed according to 
 common sense, common honesty, and common rules, they only 
 included "other" dispositions to take effect at death: and what 
 right then had the Committee to inquire generally into the 
 " nature and amount of all property " held in trust for " Catholic 
 purposes"? Mr. Harting might have declined to answer on 
 that ground, of the irrelevancy and impertinence of the ques- 
 tion. He objected on one, perhaps, even clearer and stronger: — 
 
 "The information I have on the subject, I could only obtain in <my pro- 
 fessional capacity, and of course I could not communicate it." 
 
 He added : — 
 
 " The question is one which Cardinal Wiseman could not answer. It is 
 not within his knowledge." 
 
 Now, let the reader particularly attend to what follows. The 
 chairman asked : — 
 
 " Do you object to answer on the ground of professional confidence, though 
 Dr. Wiseman sent you here as being more able to give information than 
 himself, and do you therefore refer the Committee to Dr. Wiseman himself ?" 
 
 This was craftily designed to make it appear, that they were 
 driven to call for the cardinal. The witness answered : — 
 
 " / maJce no reference to Cardinal Wiseman. I believe that I know much 
 more on the subject than Cardinal Wiseman." 
 
 " Do you, on the part of Cardinal Wiseman (for any reasons good or bad), 
 refuse to state the amount of property in the hands and at the disposal, 
 directly or indirectly, of Dr. Wiseman. — If I were Cardinal Wiseman attend- 
 ing here, and such a question were put to me, I should feel it my duty to 
 decline to answer that question." 
 
 This was on the 19th June. At the next meeting we find, 
 that— 
 
 " The Committee deliberated on their future course of proceeding." 
 
 The result is thus stated : — 
 
 " Motion made and question put by Mr. Anstey, — That a summons be 
 sent to Dr. Wiseman, and that the chairman be directed to write to Dr. 
 Wiseman explaining the circumstances under which the summons is sent." 
 
 This was too much for the rest of the Committee, who were 
 not at all clear as to their right to call for the cardinal. So we 
 find:— 
 
150 HISTORY OP THE LAWS OF MORTMAIN. 
 
 " Amendment proposed by Mr. Napier,— That Mr. Harting be called in 
 and asked, whether he declines to answer the question solely on the ground 
 of professional confidence and priyilege V 
 
 This was cunning. If the witness answered in the affirma- 
 tive, it would appear an objection personal to himself, and 
 fairly referring the Committee to the cardinal ; he, however, 
 had already stated, that the cardinal had not the information ; 
 and he now answered : — 
 
 " I do refuse on that ground, and I should also refuse if the professional 
 relationship did not exist, because I conceive, that information upon that 
 subject might be productive of irreparable mischief, and cannot be con- 
 scientiously communicated by any person who may be exainined here." 
 
 Mr. Anstey, hereupon, renewed his motion : — 
 
 " That a summons be addressed to Dr. Wiseman requiring his attendance 
 as a witness before this Ooinmittee." 
 
 The Committee were not at all satisfied as to their right to 
 summon his eminence, and Mr. S. Adair moved an adjourn- 
 ment and special meeting to consider the question, which was 
 resisted by Mr. Anstey, who divided the Committee thus : — 
 
 Ayes. — Mr. Anstey. 
 
 Foes. — Mr. Hardcastle, Mr. Keogh, Mr. Drummond, Mr. Fitzpatrick, Mr. 
 S. Adair. 
 
 At the next meeting, Mr. Anstey renewed his motion — 
 
 " That Dr. Wiseman be summoned to attend, and be examined before this 
 Committee." 
 
 The effect of this, of course, was to deny that the illustrious 
 ecclesiastic was an archbishop. Mr. Keogh moved the substi- 
 tution of the word " Cardinal". It was now, alas ! his turn 
 to be in a "miserable" minority of one.* 
 
 * Ayes, 9 — Mr. Anstey, Mr. Heald, Sir E. Inglis, Mr. Hardcastle, Mr. S. 
 Adair, Mr. Fitzpatrick, Mr. Drummond, Mr. Marshall, Mr. Hutt. 
 
 Noes, 1— Mr. Keogh. 
 
 Evidently an intentional insult to the illustrious prelate. No member of 
 an Episcopal Church could deny that his eminence was an archbishop, 
 though they might fairly, of course, dispute the particular title he as- 
 sumed ; and no English churchman ought to have been ignorant that his 
 Church admits the ecclesiastical rank of Qatholic prelates, as it does the 
 order of Catholic priests. And then, as to the title of cardinal, what 
 conceivable objection could there have been to it, seeing that it was purely 
 
HISTORY OF THE LAWS OF MORTMAIN. 151 
 
 The Committee directed the greater part of their examination 
 to subjects utterly irrelevant, and upon which their questions 
 were purely impertinent — the administration of charitable trusts j 
 the wills brought in on that subject, the province of Propaganda, 
 and other topics, equally extraneous to the matter submitted for 
 their investigation. Upon some of these the cardinal, with 
 calm dignity, repeatedly declined to answer; upon others, he 
 did not, though he was obviously entitled to do so; as, for in- 
 stance, with respect to the rules adopted in convents with refer- 
 ence to property of inmates. The only subject on which the 
 Committee had a right to question the cardinal, they did not 
 question him upon, until towards the close of his examination, 
 when the answers they obtained clearly showed that they had 
 no right to examine him at all, — 
 
 " It has appeared to the Committe that, in many cases, property has been 
 given, either by will, or by a distinct transfer, and that secret instruments 
 have been executed, declaring the purposes to which the property is to be 
 applied. Is it within your knowledge that this practice is common in the 
 Roman Catholic Church 1 — From my own experience, I cannot say ; it has 
 not come within my experience. Has any property over which you have the 
 control come to you in that form ? — I have been now eleven years a bishop, 
 and in the whole course of that time I have had a sum of ^£1,000 willed to 
 me absolutely by a friend ; and that is the only sum that has been left me, 
 to my knowledge, by wUl. During the many years I was a priest, / never 
 had a single legaci^ left me in any shape." 
 
 Upon these replies, it was plain that the cardinal had no per- 
 sonal knowledge upon the only subject as to which the Com- 
 mittee had a right to examine him, and they were quite aware 
 of this; for which reason they had taken care not to put the 
 
 ecclesiastical, the proper phrase being " cardinal priesfl And would any 
 churchman deny, that the Pope is a bishop, or that, as such, he had not a 
 right to create an English subject a cardinal priest of that city? Or was 
 it any reason for denying this cardinal archbishop the titles he clearly was 
 entitled to, that he had assumed some other title which it was contended 
 he had not a right to 1 Surely such a course partook of the character of 
 petty retaliation, and the matter betrayed no inconsiderable prejudice and 
 ignorance. However, Mr. Anstey had at last attained this object : his own 
 Primate wa^ summoned, and was examined. But both he and the Commit- 
 tee, after all, were signally foiled, as to their main object. 
 
153 HISTORY or THE LAWS OF MORTMAIN. 
 
 question before, and had originally, indeed, sent for him upon 
 pretence of requiring further information as to the amount of 
 trust property administered to Catholic uses in the cardinal's 
 diocese, as to which they had no right whatever to examine him. 
 And they now recurred to that irrelevant subject, and the very 
 pext question they put was : — 
 
 " Is it not the case, that a considerable portion of these funds are, in 
 reality, not administered strictly in accordance with the intention of the 
 donors 1" 
 
 A question perfectly impertinent, pertaining as it did to the 
 administration of charitable trusts; and peculiarly impertinent 
 after the cardinal had just stated that he had no personal know- 
 ledge on the subject of bequests of such property, a reply he 
 had to repeat : — 
 
 " I do not think it is ; there are none within my knowledge." 
 
 iet it be particularly noted, that the Committee throughout 
 forgot to ask the question, for declining to reply to which they 
 pretended Mr. Harting had referred them to the cardinal, and 
 compelled them to call him; a fact conclusive to show that they 
 did not summon his eminence for information, and that the 
 reason they gave was a pure pretext. 
 
 The Committee devoted the rest of the examination to the 
 general question, especially as to the justice of secret spiritual 
 trusts, which was, perhaps, not strictly relevant, since they may 
 arise on other dispositions than those which are testamentary, 
 or to take effect at death. They asked: — 
 
 " In your Church, is it not generally a distinct understanding that a legacy 
 given to bishops — quad bishops — is intended by the donor to be applied to 
 ecclesiastical purposes 1 — I consider that question to be purely one of con- 
 science: the bishops could have legally used it as they pleased. There is 
 no doubt of the legal right in such a case : but does not a gift in that form 
 convey to any ecclesiastic in youi Church a clear understanding that it was 
 intended for Church purposes 1 — I will not say that it does ; though I should 
 certainly apply it to religious purposes, because I do not consider that a 
 bishop has any interest in property, beyond the good that he may do with it." 
 
 An answer equally worthy of a Catholic prelate, and in con- 
 formity with the common law of England, which always con- 
 sidered that every farthing received by an abbott or a bishop 
 
HISTORY OF THE LAWS OF MORTMAIN. 153 
 
 was, as a matter of conscience and religious obligation, to be 
 devoted to the glory of God and the good of the Church; but 
 still considered this only a spiritual trust to be exercised under 
 the supervision of spiritual superiors, and not subject to temporal 
 tribunals or secular law. The Committee were compelled to 
 confess, — 
 
 " There is no doubt as regards the law." 
 
 And the answer of the cardinal was clear and prompt : — 
 
 " That is all I conceive I am hound to answer; because, as to the con- 
 scientious decision of an individual, that must depend upon his own feelings." 
 
 The Committee then took another view of the same subject: — 
 
 " Supposing money to he left by will, and a letter he sent to the individual, 
 after the death of the testator, stating the wish of the testator that it should 
 be applied in a particular mode, but still leaving it in terms absolutely in 
 the discretion of the donee — do you think it desirable that the trusts should 
 be kept secret 1 — I should prefer that the trusts should he declared, if mea- 
 sures were taken to secure ecclesiastical property in every case, and the 
 trusts ran no risk in law." 
 
 Here the writer ventures to remark, that some Catholics 
 might differ with the cardinal, and might conceive it far better 
 that there should, under no circumstances, be any legal trusts, 
 in order to secure the sole control to the bishops; and this 
 would be so, it is contended, according to ancient Catholic 
 custom in all cases, and would be, according to the old canon 
 law of England, at least if the trust were not specific and defi- 
 nite, to do certain specific things, but general, for the benefit 
 of the donor's soul.* 
 
 The chairman, ignorant of, or not attending to this clear doc- 
 trine and distinction of our own common law, laboured to 
 make it out, that it was a legal, if not a moral, wrong, to con- 
 ceal these secret spiritual trusts, which he persisted in speaking 
 of as of legal, instead of being purely spiritual : — 
 
 " Do you think there is any impropriety in the trust being kept secret ? — 
 I do not know that there is ; because, if it he the will of the person who made 
 the disposition that it shoidd he kept secret, I do not see any impropriety in 
 complying uith thatpersorCs will. If there be no trusts, there is nothing for 
 the law to deal with." 
 
 * See ante, p. 35. 
 
154 HISTORY OP THE LAWS OF MORTMAIN. 
 
 The chairman, however, chose to consider the will of the 
 person who might, by the. operation of penal and persecuting 
 laws, be able to lay hold of the property, to be the paramount 
 one, the will of the owner and donor, and the principal thing to 
 be considered, — 
 
 "Do you think that the person who would take the property, supposing 
 the trusts were not legally valid, has a perfect right to see the document by 
 which the trusts are declared ? — I am not prepared to say that he has. A 
 right does not consist in the possible power of making a claim ; a right must 
 exist, otherwise any one may be expected to disclose the deeds of his pro- 
 perty, that others may discover any contingent grounds of claim against it.* 
 Supposing such a gift illegal under the mortmain laws, would that be a suf- 
 ficient reason in your mind why you should disclose the illegality of the gift 
 to the residuor's legatee ? — That involves a question how far I may consider 
 the mortmain laws just or unjust, or opposed to any other laws I deem of a 
 sacred character: that would involve a question which I object to enter 
 into." 
 
 The chairman then entered, again, into matters entirely ex- 
 traneous j as, for instance, the commutation and administration 
 of trusts; upon which the cardinal most justly declined to answer. 
 At length the chairman came round to the only proper subject 
 of his inquiries : — 
 
 " Do you think that there is no reason to guard against undue influence 
 being exercised over persons on their death-beds, in your own community? 
 — I have no hesitation in saying no. No case has come to your knowledge 1 
 
 * The chairman, as a lawyer, ought to have known that it is an old prin- 
 ciple of EngUsh law that a man is Twt bound to do this ; whence arose the 
 common rule of evidence, that a man was not bound to produce his title- 
 deeds. The fallacy is flagrant, of confounding moral right with legal. A 
 law, however, only creates a right, so far as it is not inconsistent with 
 moral obligation, of which a man's conscience may fairly judge ; and it is 
 competent to a legatee to consider the will of the testator the chief thing to 
 be regarded, and to do his best to frustrate any endeavours to defeat the in- 
 tentions of the testator, and deprive the devisee of the power of carrying 
 them out, by giving the property to a different person from him to whom the 
 testator desired it to go. Is a legatee, in trust for pious purposes, to do his 
 utmost to defeat the testator's intentions, by disclosing them to those who 
 will be disposed to set them aside, by a law directed against the testator's 
 religion ? Is a trustee to do his best to destroy the trust, and transfer the 
 trust property ? What an absurdity it was on the part of Mr. Headlam to 
 affect to think so ! 
 
HISTORY OF THE LAWS OF MORTMAIN. 155 
 
 — No. Are there not provisions in the decrees of the Council of Trent, 
 against undue influence being used in such cases] Every ecclesiastical 
 writer, and every one who gives instructions to priests as to their conduct, 
 will tell them not to use undue influence, and to see that no one does." 
 
 The chairman now put a question, which elicited a most 
 decisive answer from his eminence ; — 
 
 " The Irish prelates, upon the occasion of the passing of the Boman Ca- 
 tholic Bequests Act, are said to have protested against the act, upon the 
 ground that it prevented dying sinners, in their last moments, from redeeming 
 the errors of their past lives, hy giving an acre of land for religious pwposes. 
 Do you think that is a reason against the law ?" 
 
 Neither the Irish prelates, nor any Catholic prelates or 
 priests, ever said this. The illustrious prelate, to whom the 
 query was addressed, calmly answered thus, in words fully ex- 
 pressing the Catholic teaching on the subject: — 
 
 " I believe that where a person has committed injustice through life, he is 
 hound on his death-hed to repair that injustice to the best of his power; and 
 the Catholic doctrine of restitution does not give a hope of pardon, to a per- 
 son who does not endeavour to make up for his past injustice, if he can do 
 BO. Therefore, if such a person is dying, and he has property, and his family 
 is not injured by it, it is not ' undue influence' on the part of the priest, to 
 tell him that he must endeavour to make up in some way for past injustice. 
 And again, if a person has, through the whole of his life, disregarded the 
 duty of charity, and giving alms in proportion to Ms means, I think he is 
 bound to make up for that neglect of a serious Christian duty when he comes 
 to die ; and, in that case, it would not be undue influence upon the part of 
 the priest, to advise him to leave what was a proper proportion of his pro- 
 perty for charitable purposes. Do you think that any limit ought to be 
 placed upon the power of bequeathing property to religious purposes ? — I do 
 not think so. Whatever need there might have been in past ages, I do not 
 think that there is any need at the present moment of any restriction on 
 doing charity. I do not see why it should not be left in the same way as 
 other dispositions. The existing legal restrictions deserve consideration 
 whether they ought to be altered. There may, possibly, be difliculties about 
 large quantities of land accumulating in particular hands, though that was 
 not the object of the original laws of mortmain : it was more the loss of 
 feudal services, than any anxiety about accumulation of land in particular 
 hands, which led to those laws. That may be a consideration. But I can 
 hardly conceive that the restraints of the last century on the subject, are 
 very necessary at the present time. I think you do not require any greater 
 protection against charitable bequests, than against bequests to persons who 
 may exercise an undue influence in their own favour. The influence of a 
 clergyman in favour of a charity — say of a school — is spoken of as if used in 
 
156 HISTORY OF THE LAWS OF MORTMAIN. 
 
 his own favour and self-interest. Yet he, persoiuiUy , gains nothing for him- 
 self. And I cannot comprehend the horror entertained of a 'priest using any 
 infliience in favour of the poor, while so little is expressed about an individual 
 exercising it for himself. I do not see any necessity for restrictions on gifts 
 for charitable or religious purposes; and I think the law as to superstitious 
 uses ought to be totally abolished." 
 
 Such were the views expressed on the subject by the Catholic 
 primate, who inherits the archiepiscopal authority exercised of 
 old by St. Anselm and St. Thomas, and they had peculiar inte- 
 rest and value on this very account, because, the identity of the 
 opinions of the Catholic primate of our own day, with the views 
 of the cardinal primates of the age of Magna Charta, may be 
 assumed, so as to enable us to ascertain their idea of the policy of 
 the mortmain laws. The cardinal archbishop evidently considers 
 the spirit and scope of those laws, as not at all similar to that of 
 the modern laws against testamentary dispositions for religious 
 purposes; primarily, because the latter are used exclusively at 
 such dispositions, but, likewise, because the ancient laws were 
 passed for a particular political object, and at a time when the 
 tendency of the nation was in the direction of <diarity, and the 
 Church was already richly endowed. What possible parity, in 
 principle, in policy, or in purpose^ can there be, between the 
 ancient laws and the modern; and can it be conceived that the 
 Catholic prelates who, in old times, agreed to the former, would, 
 in our days, agree to the latter? Surely the evidence of the 
 cardinal archbishop is destructive of the idea of any identity of 
 the ancient laws with the modern, and displays the latter in all 
 their deformity, as the first laws which were passed peculiarly 
 against dispositions in favour of piety and charity. 
 
 How little pretence there can be for the maiutenance of such 
 a law as respects the Catholic community was shown by the 
 evidence of the Bishop of Southwark, who cited this passage 
 from St. Alphonsus, whose moral theology is perhaps of more 
 authority than any other :— . 
 
 " When illness advances, it is the duty of the priest to advise the sick man 
 to make a good disposition with respect to his property ; for this is proper 
 for the peace of the family, and stUl more so, if there should be anything 
 wanting for the quiet of that man's conscience : but on this the priest must 
 take the greatest care that he dofes not himself fall into any suspicion of 
 avarice. If the sick man has brothers or sisters who are iu want, he must 
 
HISTORY or THE LAWS OF MORTMAIN. 157 
 
 tell him that he is bound, under grievous sin, to give to them his -property; 
 • at least, so far as is necessary to relieve their wants. But there is not the 
 same grievous obligation with regard to the more distant relations. And let 
 the priest never advise anything that may be an injury to others; for it is 
 not fitting that the ministers of Christ should excite hatred against them- 
 selves, by what they advise.'' 
 
 Let any one consider, whether the principle laid down by 
 this great theologian does not recommend itself to common 
 ^nse as the only sound one ; drawing, as it does, the proper 
 distinction between near relatives and remote; and between 
 those in want and those not in want. Can any one seriously 
 contend, that a man- is bound to leave all his property to rela- 
 tives however rich or however remote, and however regardless 
 of him ? Yet, whoever does not maintain this monstrous propo- 
 sition, must adopt the sensible principle of the Catholic theolo- 
 gians, and -disapprove of a law which never could have passed 
 in a Catholic country, prohibiting all testamentary dispositions 
 of realty, under whatever circumstances, for charitable purposes, 
 though the testator may have no relative nearer than a cousin, 
 and he may be as rich as Croesus. 
 
 That the instruction of St. Alphonsus represents, not only 
 the Catholic doctrine but the Catholic practice in this as in 
 other countries, was shown by the evidence of the Rev. J. 
 Kavanagh, of the diocese of Dublin, who stated that in that dio- 
 cese there was a distinct rule prohibiting priests from taking part 
 in the making of a will, if any one else was capable of doing it : — 
 
 " Sub nullo prsetextu testamentum scribat sacerdos si alius ad id satis 
 peritus inveniri poterit." 
 
 The opinions expressed by St. Alphonsus will be found to be 
 very much the same as those of Sir F. Palgrave, and the views 
 conveyed by the cardinal archbishop were confirmed, to a con- 
 siderable extent, by the authority of the only witness, besides 
 himself, whose evidence was of very great importance upon the 
 subject — the illustrious equity lawyer, Mr. Pemberton Leigh. 
 
 It is curious and interesting, indeed, to perceive how far, not- 
 withstanding the " prejudices of Westminster Hall," as Lord J. 
 Manners expressed it, in favour of the law against testamentary 
 dispositions for pious purposes, the opinion of the eminent Pro- 
 testant lawyer corresponds in principle with that of the illus- 
 
158 HisToaY or the laws of mortmain. 
 
 trious Catholic ecclesiastic. Mr. Pemberton Leigh thus spoke 
 
 on the subject: — 
 
 " I cannot say that I have observed any inconvenience from the law under 
 which the Court of Chancery will set aside wills obtained by undue influence. 
 I have known many instances in which bequests have been impeached, on the 
 ground of their having been obtained by individuals for their own benefit; but 
 I do not recollect any instance in which it was alleged that a bequest in favour 
 of charity was fraudulently obtained." 
 
 It will be ohservedj how completely this confirms the views 
 which have been contended for in these pages, and how com- 
 pletely it destroys that which has always been the great ground 
 for the act of Geor-ge II against testamentary dispositions for 
 charitable purposes, that they were peculiarly liable and likely 
 to be obtained by undue influence. Mr. Pemberton Leigh did 
 not deduce the obvious inference from his opinion, against the 
 general principle of the law; but the inference is suflBciently 
 obvious ; and he did distinctly advise a considerable alteration 
 of the act : — ■ 
 
 '■ There is no reason why legacies should not be given (for charity) out of 
 personalty savouring of realty, as well as out of pure personal property." 
 
 That is, he recommended that money charged upon, or arising 
 out of, or connected with land, might be bequeathable for cha- 
 ritable purposes; and he distinctly negatived the idea, that 
 the prohibition of the act ought to be extended to personal 
 property : — 
 
 " I do not think that the inconveniences arising from gifts of personalty, 
 in favour of charities, are such as to require legislative interference." 
 
 And he went still further; and very far, indeed, towards a re- 
 moval of the evil of the act : for he said : — 
 
 " I see no objection to a legacy (for charity) being raised out of a mort- 
 gage, or out of leasehold estate ; and with respect to land, if there were a 
 clause in the will directing that the land should be sold, that would preclude 
 the necessity for imposing any restraint upon alienation of real property for 
 charitable purposes." 
 
 Thus then, this illustrious lawyer, although a \erj favourable 
 witness for the law, because prepared to uphold it as far as pos- 
 sible, and not prepared to repeal it, distinctly expressed his 
 opinion against the principle of providing restrictions for the 
 prevention of undue influence in regard to dispositions for cha- 
 
HISTORY OP THE LAWS OF MORTMAIN. 159 
 
 ri table purposes, which were not imposed as to others; next, in 
 opposition to the extension of the act against testamentary dis- 
 positions of realty or personalty; and, lastly, in favour of repeal- 
 ing the act so far as to allow money to be raised frpm lease- 
 holds, or mortgages to be devised for charitable purposes, or 
 even land itself to he devised to he sold for such purposes. Let 
 it be remarked, that Mr. Pemberton Leigh was the only lawyer 
 examined before this Committee at all comparable to such men 
 as Mr. Jarman, Mr. Burge, and Sir F. Palgrave, who had been 
 examined before the Committee of 1844, and whose decided 
 opinions against the law he so far confirmed. The only other 
 legal witness worth mentioning was Mr. Bunting, a Wesleyan 
 solicitor of twenty years standing, and he was in favour of land 
 heing devisable for charitable uses, and spoke strongly against 
 the requisitions of the act, that the dispositions should take 
 effect immediately, and be irrevocable, and without any reserva- 
 tion. In fact, his opinion was, in substance, against the law; 
 and, although he recommended other restrictions, they were 
 rather against undue influence, as to which Mr. Leigh declared 
 the ordinary law sufficiently powerful. And this remark applies, 
 generally, to aU the opinions in favour of the act, or of any fresh 
 restrictions, that they all differ and are mutually destructive of 
 each other; whereas, the arguments against the law are clear, 
 consistent with each other, and with the history of the law, and, 
 moreover, rest on broad grounds of principle ; whereas, the 
 supporters of the law depend upon peddling details. Moreover, 
 it is remarkable, that several respectable Protestant witnesses 
 (as the secretaries of the Bible Society and the Church Missionary 
 Society) showed the injurious effect of the restriction most relied 
 upon — of requiring a certain interval to elapse between the date 
 of the will and the death; for they stated, that the most unex- 
 ceptionable wills were, sometimes, made (or re-made) very 
 shortly before death. This shows, not merely the absurdity of 
 this particular requisition, but the impracticability of any others 
 of a similar arbitrary character, and the folly of not relying 
 rather on some broad principle, such as that which regulated 
 either the Saxon law, allowing all bequests; the feudal law, 
 allowing none; or the Tudor, a more modern law, restoring the 
 old liberty of devising, but requiring a certain provision to be 
 
160 HISTORY or THE LAWS OF MORTMAIN. 
 
 made for certam near relations, the principle of which was 
 adopted by the measure of 1846. 
 
 It is perfectly plain, that the overwhelming preponderance of 
 the evidence before these Committees was against the law as it 
 stands. And it is equally clear, that the secret object of both 
 Committees, especially the last, was to discover some pretence 
 for depriving the Catholic community of any advantage that 
 might arise from an anticipated alteration of the law by means 
 of some exceptional legislation, imposing additional restrictions 
 intended to operate especially against them. 
 
 The evidence, however, was too much against them to afford 
 any pretence for this, at least in any direct way. They were 
 compelled to report : — 
 
 " That one of the most important witnesses, the Right Hon. Pemberton 
 Leigh, says that the statute of George II is attended with extreme inconr- 
 ve7iience; and he gave his opinion against extending it to the bequests of per- 
 sonal property . And Mr. Bunting, in his evidence, shows the great practical 
 evUs resvZting from the statute." 
 
 And further, they recommended that personal property con- 
 nected with realty be relieved from the statute : — 
 
 " And that the same law should be enacted with respect to all dispositions 
 -of personal estate given for charitable purposes, and whether it be directed 
 to be laid out in land or not." 
 
 They would fain, it is easy to see, have recommended some 
 fresh restrictions, but were forced to say : — 
 
 " They were not able to rely upon any general agreement in opinion on 
 the part of the witnesses." 
 
 They, however, recommended:— 
 
 " That it should be incumbent upon all persons to whom real or personal 
 property is given or bequeathed, upon any permanent charitable or religious 
 object, to make a return, either to Commissioners, or some public Board, of 
 the nature of the gift, and the particular purposes to which it is to be 
 applied." 
 
 With respect to the mainsubject of the law, devises of land, 
 the Committee said: — 
 
 " They do not recommend any alteration in the law which prohibits devises 
 of land for the purpose of raising a revenue to be devoted to charitable pur- 
 poses ; but that there should be an exemption from all restraints upon alien- 
 ation in favour of sites of land to be used for religious edifices (for any 
 
HISTORY OF THE .LAWS OF MORTMAIN. 161 
 
 religious community), or to be used for hospitals, cemeteries, museums, or 
 places of education." 
 
 That is to sajj the main policy of the modern law is to be 
 upheld, in prohibiting devises of land for charitable purposes, 
 except for the sites of buildings actually employed for such pur- 
 poses j and no land can be taken by testamentary disposition for 
 the endowment of a charity. Thus, a testator is to be permitted 
 to leave a little land to erect a chapel or school, but not to 
 leave any for its support/ although, for many reasons, land is 
 always the safest and surest investment for such a purpose, and 
 many persons have only land to leave, and have no near rela- 
 tions to leave it to. Thus, there is still to be kept up that 
 miserable policy, the result of that wretched jealousy of charity 
 which arose in an age of impiety. 
 
 The Committee seem sensible of this discreditable origin, and 
 character of the law, and half ashamed of it, and so make an 
 attempt to shift the reproach of it from Protestant times to 
 Catholic; and with this view laboured to establish some identity, 
 or parity, between this miserable modern policy and the ancient 
 laws of mortmain, which we have seen were so utterly unlike in 
 spirit, in purpose, and in scope. They confess : — 
 
 " The strict meaning of the word mortmain is, the conveyance of lands to 
 a corporation, having perpetual succession and existence." 
 
 But they add : — 
 
 " The popular meaning of the word is, the vesting of land or other pro- 
 perty, either in a corporation or in individuals, in such a form as that the 
 produce or beneficial interest becomes permanently applicable to religious or 
 charitable objects." 
 
 Now it is a subterfuge, to speak of the "popular meaning" of 
 the word mortmain as conveying this idea, when it is known 
 to every lawyer that the word has, in reality, no such meaning, 
 and has never been supposed to have in any court of law; but 
 that, on the contrary, it has been repeatedly repudiated, and 
 long ago exploded as grossly erroneous. Moreover, it is a mis- 
 representation to make it appear that the policy of the old mort- 
 main laws had anything to do with the purposes to which, when 
 it is notorious that they only related to the persons or bodies 
 politic in whom, the property was vested. The artifice is obviously 
 
163 HISTORY OF THE LAWS OF MOUTMAIN. 
 
 with the view of producing a false impression of resemblance 
 between the ancient laws and the modern : — 
 
 " When lands are given to individual trustees, to be held by them upon 
 charitable or religious uses, a, court of equity compels the legal owners, who- 
 ever they may be, to apply it to the religious or charitable purposes to which 
 it was devoted ; so that, in those cases not strictly of mortmain, but of mort- 
 main in its popular signification, the objects to which the land is applied 
 remain fixed and unchangeable, though the legal holders are subject to 
 alteration." 
 
 Here it is unworthily attempted to convey the impression, 
 that the purview of the ancient mortmain laws was the " object 
 to which the land is applied"; whereas, we have seen, and every 
 lawyer knows, and the chairman, when he penned this passage, 
 perfectly well knew, that the old law had nothing to do with the 
 object to which the land was applied, but solely referred to the 
 persons or bodies politic by whom it was held, and applied only 
 where it was held by a body politic. The object of this report 
 is, to represent that it was always the policy of our law, even in 
 Catholic times, to place restrictions on dispositions in favour of 
 charitable or religious objects ; and that the modern law against 
 such dispositions, to private individuals not incorporated nor 
 forming bodies politic, was only in continuation of that 
 pohcy: — 
 
 " In the early period of our history, the practice of giving lands to trustees 
 was not known ; and the only mode by which, at that time, the produce of 
 land could be made permanently applicable to a perpetual charitable or 
 religious object, was by vesting the land in a religious house or other corpo- 
 rate body." 
 
 This is utterly incorrect, as the cases cited in the former part 
 of this introduction suffice to show; disclosing as they do, that 
 dispositions of land by devise to individuals in trust for religious 
 purposes, were prevalent from the reign of Edward III to the 
 Reformation ; that the courts of law declared, them not within 
 the mortmain acts, and that parlianient never passed any law 
 against them until the period of the Reformation, when they 
 were suppressed altogether : — 
 
 " To prevent the practice of giving lands to religious houses or corporate 
 bodies there are a series of statutes, commencing with Magna Charta, either 
 prohibiting or placing various restrictions upon such alienations." 
 
 This is a tissue of misstatements coupled with a flagrant sup- 
 
HISTORY OP TUB LAWS OP MOllTMAIN. 163 
 
 pression of the truth. There were no " statutes to prevent the 
 practice of giving lands to religious houses ", but only to prevent 
 them acquiring such lands as constituted lay-feuds, which were 
 only a. part of the lands of the country. And as to the " series 
 of statutes prohibiting or placing restrictions on such alien- 
 ations", the truth is, that these statutes did not commence 
 with Magna Charta, which "prohibited" the giving, not of 
 the land, but of the lordship of the land; and subsequent 
 statutes, referring to this giving of the land, did not " prohibit" 
 it, but only required that it should be with the license of "the 
 lord j and this restriction really was hardly any at all, because 
 a regular procedure was carefully provided for religious houses, 
 whereby they might obtain this license. Thus then, the old 
 law was not only not aimed at the aUenation of lands for reli- 
 gious purposes, but favoured it, for it did not prevent it in any 
 case, and only imposed a limited restriction in certain particular 
 species of land ; and dispensed even with this upon easy terms. 
 Thus then, the mortmain Committee cannot find in our old laws 
 any confirmation of the opinion they say " some of the wit- 
 nesses" expressed, and they seem to shrink from openly avow- 
 ing:— 
 
 " That while it is boEeficial for the country generally, that a testator 
 should not be restricted in disposing of his property, it is necessary that the 
 0xercise of such discretion in matters of charity, should be subject to some 
 interference of the legislature.'' 
 
 No: although all advocates of the principle of the modern 
 law, from Hardwicke down to Headlam, have laboured hard, 
 half-ashamed of its worse than heathen character, to invest it 
 with the authority and prestige of antiquity, or to associate it 
 with the law of Catholic England; they cannot do so, save by 
 flagrant misrepresentations; and the miserable policy they sup- 
 port, is one which only arose in a Protestant age — in an age 
 of general irreligion and impiety, when the spirit of charity had 
 declined and decayed, and had almost died out in the land; and 
 when this was made the reason for extinguishing the small re- 
 mains of it that then existed in Protestant England J To prove 
 this is one principal purpose of these pages, that the modern 
 law is one for which, and for its reasons and results. Protest- 
 antism is responsible. 
 
 M 3 
 
164 HISTORY or THE LAWS OF MORTMAIN. 
 
 Another object has been, to destroy the vulgar idea which the 
 mortmain Committee did their best to diffuse, that the Catholic 
 religion is peculiarly favourable to death-bed solicitations, and 
 exposes testators to special risk of undue influence. On the 
 contrary, it has been shown, that the bulk of our monastic in- 
 stitutions were founded in an age when land could not he left hy 
 will; and that the very essence of the spirit they encouraged 
 was one of personal sacrifice (a spirit constantly displayed in 
 Catholic times by persons giving up all or great part of their 
 property for religious purposes), and that it was not until after 
 the Reformation, that dispositions by will very generally were 
 substituted for grants by deed, and that it was in an age when 
 " charity had grown cold" after sacrilege and spoliation, that a 
 Protestant parliament, desirous to encourage charity, was com- 
 pelled to stimulate especially death-bed charity, and to appeal 
 rather to the bequests of the dying, than the gifts of the living. 
 And that it was by reason of this spurious species of charity, 
 having wholly superseded, the old Catholic system and spirit, 
 that a feehng of contempt for it, induced a Protestant parliament, 
 desirous to discourage charity, to prohibit devises of land for 
 charitable purposes. That this feeling was created by Protest- 
 ant cases is of course clear from the fact, that at that time 
 CathoUcs could not have land at all ; and, moreover, now, when 
 they can, they have a protection, in their religion, against undue 
 influence, which Protestants can never possess, the plain teach- 
 ing of that religion that they cannot, without grievous sin, dis- 
 regard any near relative in want.* 
 
 * There is a passage in St. Liguori's Homo Apostolicus, in which he lays 
 down the obligation of testators to their relatives : — Paragraph 237, Tract 
 10. " De septimo prsecepto decali testatores teneutur in conscienti^, et 
 iiuidetn sub gravi legare sua bona, non solum h^redibus necessariis, e.g. filiis 
 et parentibus, aut avis, quoad legitima, sed etiam fratribus et sororibus, cum 
 isti necessitate extreme, aut gravi laborant, uti tenendum est cum Lugo, 
 Bonacia Sylvio Diana, etc. contra Sahn. Ratio est quia nos in vita jam 
 tenemur diligere et adjuvare fratres pauperes sub gravi obligatione, (ut 
 decent communiter Layman et Sylvius angeum ipsismet Salm.,) ob san- 
 guinis ligamen, et ita ut si quis suum fratrem Isedit, duo committit peccata, 
 unum contra justitiam, et alterum contra pietatem. Si igitur obligatio 
 pietatis nos in vita ligat, quidni in morte ?" Upon this a priest, a friend 
 of the writer's, thus comments : — " Of course the inference from this is very 
 
HISTORY OP THE LAWS OF MORTMAIN. 165 
 
 One broad conclusion can be drawn from this lengthy review 
 of the history of the law of England in relation to this subject ; 
 that in Catholic times, when the Catholic Church was established 
 by law, and the Catholic clergy had fullest influence, there was 
 no legislation, as modern writers mendaciously represent, directed 
 against the acquisition of property by the clergy for themselves 
 or for the Church; no legislation of which the reason and 
 motive was either apprehension of undue influence, or disregard 
 of the just claims of relations : ba** that no traces can be de- 
 tected of such apprehensions in our legislation, from the Saxon 
 laws to the Conquest, from the Conquest to M|igna Charta, 
 from Magna Charta, all through the period from the laws of 
 mortmain to the Reformation — no, nor even from the Reform- 
 ation to the Revolution ; but that these ideas took their rise in 
 a period after the Revolution — in an age of irreligion — an age 
 in which charity was either destroyed by iniquity or simulated 
 by vanity. Then it was, in an age of universal corruption and 
 wide-spread scepticism, that the modern notions about any pe- 
 culiar necessity for legislation against undue influence in ob- 
 taining charitable bequests originated ; and then it was that, in 
 order to justify their legislation, misrepresentations became cur- 
 rent as to the scope and policy of our old English Catholic laws 
 on the subject; then it was, that it was mendaciously represented, 
 that our Catholic ancestors had to legislate against the rapacity 
 of their clergy, and " that the religious houses were founded and 
 endowed by dying men." The very reverse is the truth : there was 
 no such legislation, there was no need for it; there was no 
 notion that there was need for it, because the Catholic religion 
 did what never could have been done by legislation; it taught 
 men the virtue, and gained them the grace of charity, and made 
 them exercise it by self-sacrifice, so that the vast majority of 
 endowments conferred upon the Church were by gifts, not of 
 the dying, but of the living; and by grant, not by last will: and, 
 moreover, the Catholic religion taught men, long before the law 
 did, that a man's first duty is to provide, living or dying, for hig 
 
 plain : if the testator is obliged, sub gravi, that is, under pain of mortal 
 sin, to provide for his needy parents, etc., the priest who would influence 
 him to their loss, must also be guilty of mortal sin." 
 
166 HISTORY OF THE LAWS OF MORTMAIN. 
 
 near relatives who are in want. That this is the true teaching 
 and tendency of the Catholic religion, stronger evidence can 
 now be adduced (thanks to mortmain committees) than the 
 writings of theologians or evidence of priests. The plain simple 
 fact is, that not only every case which has been substantiated of 
 undue influence upon a testator, is a Protestant case, and one in 
 which the influence was exercised not for charity, but for self; 
 but that through the whole range of judicial proceedings or par- 
 liamentary experience, although three committees have sat for 
 the purpose, partly or principally, of discovering Catholic cases, 
 and have disclosed numbers of cases, not one has been disclosed 
 in which any Catholic will can be fairly impeached on these 
 grounds; not one in which religious bequests have been made 
 without reasonahle provision for relatives {reasonable with re- 
 ■ ference to proximity and to exigency), not one Catholic will in 
 which the just claims of relatives have been disregarded. How 
 can such cases occur in a Church, which teaches that they can- 
 not occur without sin? 
 
 Surely then, so far from there being any peculiar necessity 
 for the laws against testamentary dispositions for pious purposes 
 in Catholic cases, it is proved conclusively, on the contrary, that 
 there is, in such cases, the least scope for such a law, and what- 
 ever may be the need for it as to Protestant cases, there is not 
 as respects the Catholic Church, in this realm, any real neces- 
 sity for it. And, going back to the period when we commenced, 
 and contrasting such a law with that which the first Christian 
 emnerors passed, and comparing it with the heathen law they 
 repealed, it cannot but be seen that the law of this country was 
 a retrogression not less than twelve centuries, that it was a re- 
 enactment of an anti-Christian legislation repealed by Constan- 
 tine and reversed by Charlemagne, and that the policy of Pro- 
 testantism as to endowments for religion has been a recurrence 
 to the policy of Paganism. 
 
APPENDIX 
 
APPENDIX. 
 
 No. I. 
 
 COMMITTEE OF 1844. DIGEST OF THE EVIDENCE. 
 
 Sir F. Palgbave. — The term mortmain, in the way in which it is 
 used in common discourse and generally employed, is inaccurate. 
 Mortmain, in a legal sense, means, simply the acquisition of real pro- 
 perty by corporate bodies having perpetual succession ; but, in com- 
 mon language, it is applied to the restrictions imposed by the 9th 
 George II, which prevent the giving of landed property (in a testa- 
 mentary way) to charitable purposes. Sir W. Grant, in a case arising 
 upon the 9th George II {Attorney- General v. Stuart, 2 Merivale, 261), 
 says, " I conceive the object of the statute of mortmain is wholly poli- 
 tical." It is not mortmain: it is a statute for preventing the alien- 
 ation of land (in a testamentary way) to charitable uses ; preventing, 
 of course, real property being so given, not only to corporate bodies 
 but to persons unincorporate, in trust, for charities. The old law of 
 mortmain applied only to corporations. The modern law has no pecu- 
 liar reference to corporations having perpetual succession. It does not 
 prevent bequeathing land for purposes not being charitable; for in- 
 stance, to the City of London, or to any non-charitable institution or 
 society, empowered to take land. The statutes of mortmain apply 
 equally to all corporations having perpetual succession. There is a con- 
 siderable difference between the two laws. The old law had but one 
 simple object; it is not a general restriction upon granting land to 
 corporations prohibitive of grants for religious purposes; it merely 
 seeks to prevent certain lands being held in a manner, whereby certain 
 incidents of tenure were lost to the lord of the land and to the state or 
 community. This appears in part, at least, from the statute De viris 
 religiosis, 7th Edward I, which recites, that it had been provided, 
 that religious men should not enter into fees without the license and 
 will of the lord, whereby the services which are due for such fees, and ■ 
 
170 APPENDIX. 
 
 which were provided for the defence of the realm, would be wrong- 
 fully withdrawn, and the chief lords would lose their escheats of the 
 same. Therefore, the first restriction imposed by the law was for the 
 purpose, amongst others, of preventing mischief to the lords, in conse- 
 quence of losing the incidents of tenure. 
 
 Blackstone states, that the statute was passed in consequence of the 
 evasion by the clergy of the former law, and he describes what the 
 evasion was. I should doubt whether he was correct. My impression 
 is, that there is nothing to bear out his observations ; in fact, the nu- 
 merous donations which we find in earlier periods without reference to a 
 license, would make one suppose it was not the case. 
 
 It was not only the pecuniary or military incidents of tenure. At 
 that period, there were a great many civil obligations connected with 
 land, which could not be discharged unless the freehold was in pos- 
 session of laymen. If religious persons held an undue proportion of 
 land, there would be a deficiency of persons to attend the view of 
 frank pledge; a deficiency of persons to be put in assize as jurors. 
 Attendance upon assizes in early days was exceedingly burdensome, it 
 was so burdensome, that it was a very common thing for persons to 
 obtain a remission of that duty. These duties were very onerous, and 
 if there were \nxi few freeholders, it became a great hardship upon 
 them. 
 
 Thus, one of the objects, though not expressed in the statute, pre- 
 • venting alienation of land to persons of religion, or to religious houses, 
 was to prevent a diminution in the number of persons in the county or 
 hundred, able to perform those services to the community. 
 
 By the statute 27th Edward I it was ordained, that such as would 
 purchase a new park, and men of religion who would " mortige" land 
 or tenements, should have writs out of the Chancery to inquire, upon 
 the points accustomed in all things, and that inquests of lands or tene- 
 ments, worth more than 20s,, be returned into the Exchequer, and 
 there to make a fine of mortigation ; or, for a park, if the inquest do 
 pass to him that purchased them, and afterwa,rds a fine is to be made. 
 Parks were subjected to the same rule, because, by absorbing the 
 smaller tenants, they might lead to the same evil; and accordingly, 
 from that time, no mortigation was to be made except by such previous 
 inquiry ; the inquiry was to be by a jury, and according to their verdict 
 a license was to be granted or refused. 
 
 By the statute 15 Richard II, cap. 5, it is asserted, "because 
 mayors, bailifis, and commons of cities, boroughs, and other towns, 
 which have a perpetual commonalty, and others which have officers 
 perpetual, he as perpetual as people of religion, that from henceforth, 
 
APPENDIX. 171 
 
 they shall not purchase to them and their commonalty or office, upon 
 pain contained in the said statute De religionis; and whereas others 
 are possessed or hereafter shall purchase to their use, and they thereof 
 take the profits, it shall be done in like manner as is aforesaid of 
 people of religion." 
 
 At this time, the guilds (which include all the ancient trading com- 
 panies) and corporations (municipal), were acquiring great influence, 
 and the statute was intended to check their political influence. There was 
 a jealousy against guilds and corporations; and a restriction is here 
 put on lay communities never thoiight of before. I think these restric- 
 tions were purely political. 
 
 There was not much attention directed to the subject after this. In 
 the reign of Henry VIII, there was a statute to prevent gifts to frater- 
 nities,* etc. But there were no further restrictions on alienation in 
 mortmain. It was not likely, that gifts would be made at a time when 
 religious and charitable foundations were the bait for cupidity, and the 
 objects of general spoliation. At the accession of Elizabeth, the 
 Church, the Crown, the legislature, and the people, and above all the 
 lawyers, were in favour of charity; and gave every kind of encourage- 
 ment to gifts for pious purposes. 
 
 " The religious feeling which had subsisted at earlier times, and had been 
 checked by the abuses flrhich caused the Reformation, and by the Reforma- 
 tion, did then revive in a very extraordinary manner. Of course objects 
 connected with Romanism and dissent were unfavoured ; but, with the ex- 
 ception of those sects which the law proscribed, increasing facilities were 
 afforded for pious endowments. The 39th Elizabeth provides, that ' all per- 
 sons shoidd have power to erect, found, and establish hospitals, maisoiis de 
 Dieu, etc., which might be incorporated, and hold lands, notwithstanding 
 the statutes of mortmain'; and, moreover, gives power to devise lands for 
 these purposes by last will. The 43rd Elizabeth ' to redress the misemploy- 
 ment of lands, goods, and money, given to charitable uses', confirmed to such 
 uses lands appointed or assigned by wUl or deed. Those statutes gave the 
 tone to the age."t 
 
 There is a specific case in the 11th Edward I, which will show how 
 the general law was practically worked. It appears by the rolls of 
 Richard I, p. 63, that a writ of ad quod damnum having been retained 
 before the king in parliament^ he refuses the license to several persons 
 who wished to give lands to the Archbishop of York, because they have 
 not got wherewithal to support the common burthen of the country, but 
 grants it to those who have wherewithal to bear the common burthen 
 of the country ; therefore, so far as this species of legislation extended, 
 
 * See Essay. 
 
 t Rather the Catholic Church had given the tone to the common law, the 
 cunstitution, and the character of the nation ; which it required some gener- 
 ations to wmr out. That it did, the sequel shows. 
 
172 APPENDIX. 
 
 the restriction did not arise from any jealousy, either of the person re- 
 ceiving, or of the object, but was enforced for the purpose of preventing 
 damage being done to the community, by lands being vested in a body 
 which could not perform the common services which were incident to 
 land, and which were of a more extended nature than financial objects or 
 territorial rights. 
 
 Sutton's case, as reported by Coke, is most instructive. It testifies 
 the joy which Coke felt in overturning the technicalities by which that 
 gift was attempted to be set aside. He considered, that charitable 
 donations were as beneficial to the community as his successors have 
 thought them injurious. His feelings and language form a singular 
 contrast to the opinions of Lord Hardwicke, a great judge, but one 
 whose narrowed, nay bigoted, views, have caused so much mischief to 
 charitable uses. During the period following the reign of Elizabeth, 
 a large proportion of our most useful institutions were founded; both 
 grammar-schools and hospitals. When Lord Coke makes a remark on. 
 the statute of Henry VIII, by whifch the power of devising land was 
 given, and which, he says, tended often to the disinherison of heirs, 
 he does not raise any objection to devises for pious or charitable pur- 
 poses; and the case he alludes to is between a devisee (for his own 
 use) and the heir, not between a charitable foundation and the heir. 
 In this country we enjoy, by successive statutes, the greatest power of 
 alienation by will; and the point is, whether it be needful to make 
 charitable donations a peculiar exception. In every other country in 
 Europe you cannot disinherit wife or child ;* a man must leave a cer- 
 tain portion to his wife and children, which in France is called legitimi. 
 But in. England, the process hsis been to break down that system, and 
 by the statute of wills (of Henry VIII) and the statutes of frauds and 
 of feudal tenures (of Charles II), all restrictions on testamentary de- 
 vises of land were removed. In personal property, the process was 
 analogous. Originally, the personalty of a testator was divided into 
 three portions, one for wife, one for children, and the third only for 
 the testator's disposition. As lately as the reign of Charles I, this 
 was the law. Between that reign and the Revolution, a great and 
 unaccountable alteration in the law took place without any legislation, 
 the old law became obsolete except in London and in the province of 
 York; and in the reign of William III acts passed entirely abolishing 
 it. Along with this relaxation of law, there has continued a right 
 feeling in the community at large, not to disappoint the reasonable 
 expectations of relatives. And the question is, whether it is necessary 
 
 * For any purpose. 
 
APPENDIX. 173 
 
 to impose any peculiar restrictions preventing a testat'or from exercis- 
 ing his wUl, in all other respects unfettered, in favour of objects con- 
 nected with religion, piety, or charity. The statute of George II 
 turned public opinion, particularly that portion of it which resides in 
 Westminster Hall. From that moment, charities were persecuted by 
 the legislature; the judges made the law to fit the statute, and ex- 
 panded it in every way. There had arisen an adverse feeling against 
 charitable bequests; the statute set the seal upon it. There was a 
 jealousy of the Church of England, especially of Queen Anne's Bounty 
 Act. The act of Queen Anne was dictated by a spirit of affection 
 towards the Church; and the act of George II was dictated by a spirit 
 adverse to the act of Anne. The particular pretence for the act was 
 spoken of in the debate as follows: — " If a man happen to fall into 
 the delirious ambition of erecting a palace for beggars, and having his 
 name engraved in gilded letters above a superb portico; or if he grows 
 ambitious of having his statute set up in the area of any charitable 
 place already erected, cannot he give some part of his estate in his 
 lifetime for that purpose, and reserve a sufficient estate for supporting 
 himself." I think the allusion is to Guy's Hospital; probably, some 
 person thought he ought to have been Guy's legatee. It was a time 
 when large charitable endowments were made ; and the donations 
 which now go in subscriptions to religious societies then went to per- 
 manent endowments. 
 
 The act of George II prevents any devise of land for charitable pur- 
 poses by will, or grants of land by deed, unless made twelve months 
 before death. 
 
 As the law now stands, a man on his death-bed, may leave £100,000 
 to be invested in the Three per Cents for founding public schools, but 
 he cannot give that species of property, which according to the usual 
 course of events vnll increase with the prosperity of the community. 
 Supposing a testator, in the time of Elizabeth, had left £1,000 worth 
 of land to one school, and £1,000 of money to another school invested 
 in the public funds, if there had been then any public funds, th» one 
 would have increased perliaps fifty-fold, the other would remain with- 
 out increase. Assuming that it is right to encourage charitable found- 
 ations, then any law which tends to discourage the investment of the 
 bounty of the donor in land, is injurious to the community; because 
 you deprive the charitable foundations of all the increase which landed 
 property has received, and wUl receive, and which it is likely to receive. 
 Take another case, which has not happened in this country yet, though 
 it has happened in other countries. Supposing a national calamity to 
 ensue, your funds might then be swept away, and all the objects of 
 
174 APPENDIX. 
 
 the foundation would be reduced to poverty. Under such a calamity, 
 the land" might be taken, but still it would have a better chance of 
 escaping the general wreck. Such things have occurred on the conti- 
 nent, e. g. at Genoa, when so many noble institutions fell with the 
 ruin of the bank of St. George. I consider, that any law which tends 
 to discourage or prevent land endowments for religious or charitable 
 purposes, as against -public policy and injurious to the coimtry. Upon 
 every principle of public policy landed endowment is best ; because it 
 is the only endowment which corresponds with the general condition 
 of the country. Every endowment, except a landed endowment, is 
 either unimprovable or insecure; you can find no safe or permanent 
 endowment in personal property except the Three per Cents; in fact, 
 you deprive the endowment of the principle of stability and improve- 
 ment; you act in the most uneconomical manner, and force the policy 
 of piety to exhaust itself in transitory objects instead of foundations 
 which are permanent. Instead of investing moneys in permanent 
 endowments we spend it within the year on difierent charities. The 
 effect of the statute has been, to divert what would have been perma- 
 nent endowments to transitory purposes. 
 
 With regard to the non- improvement of property, the matter is 
 clear; in the tiftie of Queen Elizabeth, the only manner in which you 
 could invest money was upon mortgage, and some persons bequeathed 
 money, directing that it should be invested on mortgage. In most 
 such cases, it' has entirely wasted and gone. Money so given would 
 never increase. If a founder in the time of Queen Elizabeth had left 
 £100 to be invested in mortgage, that mortgage would only be £100 
 at the present day supposing the fund preserved; whereas, by be- 
 queathing it in land, important results would have been produced. 
 Take e. g. the school at Birmingham as a proof of the extraordinary 
 advantages resulting to the community from a landed endowment; it 
 has enabled the corporation of Birmingham to erect a magnificent 
 college and many schools out of the endowment provided for one. 
 
 The general impression in favour of the law, arises from persons 
 not adverting to the great mutations in society, and moreover law. 
 People consider the mortmain law as having been one uniform system 
 from the first notice of the mortmain principle in our statute book; 
 they forget, that in the earlier periods, the object of the law was only 
 financial and political. The first restriction was imposed for the pur- 
 pose of preventing the lords from being deprived of the incidents of 
 tenure, and also for the purpose of preventing detriment to other free- 
 holders in the county, by the creation of a class of landholders {i. e. 
 holding in a corporate not a personal capacity), who would not be 
 
APPENDIX. 175 
 
 liable to perform the same civil services which they were called upon 
 to perform, and which, if ecclesiastical (or rather corporate) holders of 
 lands were unduly multiplied could not be well performed. 
 
 The assumptions of popular but shallow and prejudiced writers have 
 induced people to attribute to all charitable bequests, the abuses 
 ascribed to those previous to the Reformation. They have done this 
 in a most unthinking manner, not at all adverting to the fact, that 
 from the time of Elizabeth to that of George II, the Church of England, 
 the dominant Church, had no apprehension of that kind. The feeling 
 against charitable foundations as favouring Romanism is, on the 
 whole, modern. I think it can be traced after the Revolution. I doubt 
 if it existed in the period when the principles of the Reformation were 
 most active, and when there was the greatest possible fear of any 
 increase of power on the part of the Romanists; our feelings, since 
 then, must be attributed to a complication of causes, and, not least, to 
 the total misconception of what mortmain is; for, you will always find 
 the popular objection is, that of " locking up land in perpetuity ; as if 
 land given to charitable purposes could not be put as much in the 
 market as land entailed by a marriage settlement. By our modern 
 mode of conveyance, trust property can be as much in the market as if 
 it were held in fee simple. Then, also, people do not realize the fact, 
 that the act of Geo II, if its principles were consistently carried out, 
 would prevent charitable foundations from any permanent investment 
 whatever, except the public funds. The public funds are now so con- 
 venient for many charitable purposes, that they do not see how many 
 objects, which they themselves most wish to promote, are wholly de- 
 pendent upon the funded system, and which deprives the objects of 
 their bounty of the advantage which landed investment would afford. 
 Perhaps, however, the main cause may be found in the habit of taking 
 traditionary opinions upon trust. 
 
 The policy of a mortmain law resolves itself into this question, that 
 if it be expedient to encourage and protect any donations whatever, 
 for the purpose of promoting the glory of God and goodwill towards 
 man, it is highly impolitic. Assuming it is right to encourage charit- 
 able foundations, then any law which tends to discourage the invest- 
 ment of the bounty of the donor in land, is injurious to the community, 
 because you deprive the charitable foundations of all the increase 
 which landed property receives. The law, in its present state, is 
 highly impolitic. There ought to he no restrictions on the object or 
 extent of the gift or bequests. And no distinction as to different sects. 
 Any protection against improper bequests should be by general law. 
 There should be no special provisions applicable to charity trusts. The 
 
176 APPENDIX. 
 
 general law is sufficient. If a man escheated, the law gives protection. 
 If a man is not of competent mind, the law gives protection, and makes 
 the gift void; as to any improvident alienations, the general law will 
 afford due redress. The ordinary legal powers are sufficient to afford 
 a remedy against a misuse of the power of donation; the cases in which 
 a gift could be set aside, would be fraud or the want of proper under- 
 standing. 
 
 Eet the restrictions be removed, and though you might occasionally 
 have some extravagant bequests; stiU, on the whole, the same good 
 feeling which would promote charitable bequests. Would equally pre- 
 vent persons disregarding the proper objects. By lowering the standard 
 of public feeling, you injure the proper objects of natural affection, be- 
 cause you dry up the source of natural affection. You encourage the 
 evil propensities -which generate malevolence, and you do not take 
 away from capricious or ill-tempered persons their resource of spiting 
 their relations, by leaving money to pay off the national debt, or for 
 some fantastic purpose which, because it is uncharitable and useless, is 
 therefore protected hy law. 
 
 I do not attach any weight at all to the objection as to disappoint- 
 ing the reasonable expectations of heirs and their families; because 
 our law has wholly discouraged reasonable expectations, and protects 
 no certain expectation whatever. In fact, it is utterly impossible to 
 define what is a reasonable expectation. Is it -the expectation of a 
 dutiful son, or of a disobedient one? of a distant relation, a third 
 cousin, who has shown you great kindness in time of affliction, or of a 
 very near relation who has kicked you in adversity and courts you 
 when you have made your fortune ? You can only secure the rea- 
 sonable expectations of heirs and families, by the sound and con- 
 scientious feeling of the party. The real mode of teaching a testator 
 to do his duty to his kinsmen and friends is, by raising his general 
 character. 
 
 I should only wish that my evidence should be considered as 
 the means of leading others to consider the question impartially, 
 and especially to examine the propriety of submitting any longer 
 to the thraldom of the traditionary opinions (if I may use the expres- 
 sion) which have arisen during the last century. We are now wholly 
 governed by the traditions of Blackstone, Delolme, and" Robertson, 
 and other writers of that description : I may also add, of Adam Smith, 
 whose opinions are taken entirely as law, without the slightest inves- 
 tigation as to their truth or relevancy. All these writers have con- 
 tributed to fetter public opinion upon the subject of mortmain, and to 
 prevent that freedom of thinking which results from the investigation 
 
APPENDIX. 177 
 
 of facts. Robertson says nothing of mortmain expressly; still less 
 does he refer to our own jurisprudence. But this question of mort- 
 main is one which, of all others, is governed in the minds of the 
 majority by what Guizot calls historical traditions. Our notions of 
 Church authority, and of the influence of the Church in general, are 
 gained almost in our earliest youth, from the first educational works 
 which fall into our hands. The influence of these educational works 
 continues to affect the minds of the majority of the world during life. 
 Perhaps none of these works have been more influential than that of 
 Robertson in creating a suspicion, and; in many cases, an absolute 
 aversion, against every increase of power or property in the hands of 
 the clergy. How far such power or property may be abused is foreign 
 to the present question ; but such works as those of Robertson, and 
 which we find constantly appealed to in argument, convey an entirely 
 false notion, by representing the Church as adverse to what is now 
 termed civilization. Ecclesiastical power and property may be, and 
 has been, perverted and abused ; but the arguments used by Robert- 
 son, whom I name also as the type of agencies, would go, if carried 
 to their full extent, to every species of religious or charitable endow- 
 ment whatever. He, in his well-known work, from which most people 
 obtain their ideas with regard to the middle ages, represents, on the 
 whole. Church influence as an antagonist principle to the progress of 
 society; whereas, without entering into any doctrinal question, and 
 simply considering the Church as fact, it was the great means of both 
 civil and intellectual improvement. 
 
 Mr. BuEGE, Q.C.* — The statutes of mortmain originated,- not in any 
 design to prevent religious or charitable institutions from receiving 
 gifts, but in the desire to preserve to the Crown and to the mesne lord 
 those feudal rights, of which they would unquestionably be deprived, 
 if property were permitted to be given to a body incompetent to part 
 with it.f The law would not allow the Church to part with property 
 it had acquired; it became, therefore inalienable,]; and the Crown and 
 the mesne lord lost all the incidents of escheat, relief, and other feudal 
 proflts, which were of considerable value. Hence, the policy of the 
 law luas, not to declare the alienation void, but merely to permit the 
 Crown or the lord to enter; and they might remit the forfeiture, and 
 
 * A lawyer of great learning, since deceased. 
 
 t Qucere whether ecclesiastical corporations could not at common law 
 alienate ; in the reign of Elizabeth, acts were passed to prevent them. But 
 they could not die; and of course no corporations could render personal ser- 
 vices, being ho^cs politic. — Vide ante, Introductory Essay. 
 
 X Not inalienable, though not descendable. See previous note. 
 
 N 
 
178 APPENDIX. 
 
 they did so, receiving an equivalent. Thus, a compensation vs^as given 
 for a license to alienate in mortmain. 
 
 The mortmain acts terminate with Richard II. Another description 
 of statutes is connected with the subject — the statutes of superstitious 
 uses. The first of these was the 33 Hen. V, c. 10, which made assur- 
 ances and trusts of land, for certain uses, void; but the Crown ac- 
 quired no interest until the act of 1 Edward IV, c. 14, which vested 
 the lands in the Crown, but the purposes to which they were to be 
 ' applied, were connected with the advancement of religion and educa- 
 tion, the support of the clergy, and the relief of the poor. Commis- 
 sioners were to assign lands to grammar'schools, and for maintenance 
 of additional priests, etc. and perpetual allowances to poor people, and 
 a number of schools were founded chiefly out of the charity lands; 
 though the rapacity of the courtiers rendered it impracticable to carry 
 the ostensible objects of the statute into effect. Then came the act of 
 Elizabeth (according to the description of Lord Chief Justice Wilmot), 
 with such medicinal qualities in it, as to heal every imperfection in a 
 charitable disposition, provided the party had a legal capacity to give 
 at all. The intention of the legislature was, that if estates were given 
 \nfact, defects in form were not to be attended to, and they were to 
 let the charity take place. That was the opinion of Lord Henley and 
 Lord Eldon. And Mr. Jarman says, the act of Elizabeth, as construed 
 by the courts, tended greajtly to facilitate gifts of this nature ; it having 
 been held to authorize testamentary dispositions of land to corporations. 
 Mr. Jarman says, in his work on wills, that the policy of early times 
 strongly favoured gifts of land for charitable purposes. 
 
 It will be seen, how anxious the legislature was to promote gifts to 
 charitable purposes. The effect, however, of the dissolution of monas- 
 teries and other religious houses, was felt to be so serious in depriv- 
 ing the poor of the subsistence they were accustomed to receive, that 
 an act was enacted in the reign of Elizabeth, authorizing the disposi- 
 tion of lands for certain charitable purposes, more especially for the 
 relief of the poor; provided that the bodies in whose favour the grant 
 was made were incorporated, and a license in mortmain obtained. 
 Another act was passed, dispensing, in certain cases, with the incor* 
 poration and the license in mortmain. There is no doubt, that a 
 license in mortmain could always be obtained, the power to give which 
 was, conferred by tjie act of William III. At the commencement of 
 the eighteenth century, however, the tide of public opinion appears to 
 have flowed in an opposite direction, and the legislature deemed it 
 necessary to impose further restrictions on gifts to charitable objects. 
 The result was the act of George II, usually, but inaccurately, called 
 
APPENDIX. 179 
 
 the modern statute of mortmain. The law is bad in principle; using 
 its apprehension of mischief as the pretext for prohibiting altogether 
 testamentary dispositions of land for charitable uses. 
 
 If we compare the means of religious worship and of religious in- 
 struction at the dissolution of the monasteries, with the population of 
 the country at that time, and make a similar comparison of those 
 means and the increased population at the commencement of the pre- 
 sent century, the disproportion between those means and the increased 
 population is appalling. I cannot bring my mind to believe that, if 
 the statute of George II had not passed, such an evil would have 
 existed. The practical effect of the repeal would be, to give eifect to 
 a very strong feeling throughout the country, to promote and extend 
 the means of religious worship and instruction. , 
 
 The origin of the act I should be exceeding puzzled to state. I have 
 endeavoured to ascertain it by research, but without success. I am 
 strongly inclined to think, that there is a great deal more than meets 
 the eye, in reading the history of that time. When I compare the 
 enactments of the act with its title and preamble, I suspect there must 
 have been some local and partial purpose to be answered. It is clear, 
 we have not arrived at the real motive of the legislature by anything 
 which is professed in the title or preamble, or which one can collect 
 in the history of the times. The act was passed about the period 
 when the general practice of daily service in the chm-ches began to be 
 discontinued in the metropolis and other parts of England. And the 
 state of religious feeling in the country, was not that which would inter- 
 pose any powerful opposition to the act. 
 
 By the act of George II, the control and restraint of the testa- 
 mentary dispositions is imposed only when the disposition is of land, 
 and for charitable purposes; though the mischief of imposing on a 
 testator, in a dying or languishing condition, is quite as great, and as 
 much to be guarded against, when he is disposing, by will, of his per- 
 sonalty or of his land for other purposes. It is singular, that in Eng- 
 land there is no restraint whatever upon the power of testamentary 
 disposition, except in the single case of a testamentary disposition of real 
 property to charitable purposes. There is nothing to prevent a testa- 
 tor, though he has children solely dependent upon him, from leaving 
 them destitute, and giving the whole of his property to a worthless 
 prostitute. I think the law had in principle, making no provision 
 against what is really the mischief, but making it a pretext for pro- 
 hibiting altogether bequests of land for charitable purposes. 
 
 I think a repeal of the act might take place with great advantage; 
 and if, notwithstanding the altered state of public feeling, the altered 
 
 N 2 
 
180 APPENDIX. 
 
 policy of the country, and tlie altered nature of property, and the great 
 increase of our population, it should stUl be considered desirable to 
 secure those objects which the statute professes to have in view, those 
 objects might be thus attained : — First, if money were bequeathed to be 
 laid out in land (which at present would be void under the statute), 
 the charitable body, to whom it was given, would take it as money, 
 supposing it to be a desirable object to continue the restriction on the 
 disposition of land, though I am of opinion it is not requisite. Then, 
 if it be desirable to guard against any possibility of immediate relations 
 being deprived Qf the property : I believe, in almost all cases in which 
 charitable bequests have been made, the parties have had no near 
 relations ; certainly none standing in that degree of propinquity to 
 the testator, that it could be said they had a just claim to his bounty. 
 And a court of equity, in enforcing the act of George II, has too fre- 
 quently given occasion to the painful reflection that money, which 
 might have been well expended in promoting objects of piety and 
 charity, has been dissipated in a long protracted litigation to discover 
 some remote heir. I feel it extremely difficult to believe, that persons 
 who leave money or land for charitable purposes, would, or could, so 
 far forget the first dictates of charity, as to leave destitute those for 
 whom they were bound by nature to provide. I believe, mpst bequests 
 for charitable purposes are not made suddenly, they have been long 
 contemplated by the testator, the subject of much consideration; and 
 the bequest is not induced by weakness of mind or suggested by fear 
 of death. The testamentary disposition of land might be subject to 
 some such provision as the legitime in favour of children. 
 
 The Loup Advocate op Scotland. — There is little practical 
 restraint on the application of property in Scotland for charitable pur- 
 poses; there is some difficulty in point of form sometimes with regard 
 to land; but there are modes by which land may be held in trust for 
 charitable purposes, and no inconvenience has arisen from it. Prac- 
 tically, there is no restriction upon leaving land for charitaiale purposes, 
 though it cannot be done by mere will. A person can give land to 
 charitable purposes by deed to take efiect at death, or to take efiect at 
 once, reserving to himself a life-interest in it.* I do not know of any 
 instances in which abuses have arisen from this power through leaving 
 of land" to unworthy objects. I am not aware of any injustice being 
 done to the children of any testator, but I have known complaints on 
 the part of near relatives, that they had been cut out by lands and 
 funds being left for charitable purposes.f We have a law, called the 
 
 * Which cannot be done in England under the law of George II. 
 t Let the reader recollect this distinction, which Protestant writers or 
 witnesses can draw for themselves, but not for Catholics. 
 
APPENDIX. 181 
 
 law of death-bed, under which a person cannot leave his property to 
 any parties or for any purposes away from the heir; if the testator be 
 ill at the time of the disease of which he dies, unless it be sixty days 
 before death, or unless there be a convalescent period intervening, 
 during^ which he is seen at church or market. This restriction applies 
 to all devises.* There is not a considerable portion of real property 
 in Scotland devoted to charitable purposes.f Most charities do not 
 accumulate their funds, but apply them to the purposes of the charity.J 
 There has not, of late, been any tendency to increase charitable objects 
 by the appropriation of land. There was a considerable fund given, a 
 few years ago, by Mr. Bell, who brought to perfection the Lancasterian 
 system of education; and Mr. Donaldson left a large fund for the 
 building an hospital in Scotland.g Those parties || so left their for- 
 tunes,^ to the prejudice of some of their heirs.** I have known 
 other cases of parties, in a state of weakness, leaving their heritable 
 property, or part of it, to a more distant relative instead of the heir-at- 
 law,|f but whether that is to be called " improvident" or not, I cannot 
 say. It might be, that the heir-at-law was a very worthy or needy 
 person or the reverse; if the law strikes against the deed, the heir-at- 
 law recovers the property, whether he be worthy or unworthy, poor or 
 wealthy. J J 
 
 The Eight Hon. Anthony Blake, Chief Remembrancer of the 
 Irish Court of Exchequer. — Grants of property for Roman Catholic 
 purposes are valid in Ireland; there is no law to invalidate them; and 
 though no grant can be made by law directly to a Roman Catholic 
 bishop or priest for the time being of any particular place, §§ because 
 
 * And therefore, like the old laws of mortmain, has no especial aim at 
 charitable or pious bequests, as the modern English law avowedly has. 
 
 t Although the law allows of its alienation to such purposes. 
 
 X An answer to the absurd and affected apprehensions of those who talk 
 of charity " swallowing up aU the laud of the country". 
 
 § See evidence of Lord Provost, Committee of 1850, post. 
 
 II IBoth Protestants, be it observed. 
 
 T Personal estate in both instances. 
 
 ** Whether this were improper or not, depends on the circumstances. 
 See the next passage. 
 
 ft So that it is not for charities alone that heirs or near relations have to 
 fear disherison, although the law of England points only at charities. 
 
 XX The reader will readily recognize the reasonableness and good sense of _ 
 this distinction ; which is drawn by Dr. Cox, and all Catholic theologians. 
 Yet it is utterly disregarded by the English law, which, in the instance of 
 charity alone, fetters the discretion of the testator, and deems it better that 
 property should go to the most wealthy, remote, or unworthy relative, rather 
 than to the most deserving and destitute charity. This most important 
 evidence of the late Lord Advocate is recommended to careful consideration, 
 as contrasting the laws of England and Scotland on the subject. 
 
 §§ Though the law allowed it. 
 
18S APPENDIX. 
 
 such Roman Catholic bishop or priest is not a corporation known to 
 the law, yet such grant may, in eifect, be made through the medium 
 of a trust. It is more usual to make grants for Roman Catholic pur- 
 poses generally. Such grants have been executed by the courts of 
 equity in Ireland. The act passed in England under Edward VI, 
 against superstitious uses, only extends to England; and a bequest for 
 masses is carried out by the courts of equity in Ireland. There is no 
 law in Ireland to prevent the conveying of land, as well as personalty, 
 to trustees for charitable purposes. Persons, through ignorance, 
 make conveyances to Roman Catholic clergymen or bishops,, as if they 
 were corporations; for example, to a Roman Catholic priest or bishop 
 and his successors; which would be good only as a conveyance for 
 the life of the particular priest or bishop. The conveyance to his suc- 
 ces'sors would be void, inasmuch as he has no successors in law; so 
 that the property would, at his death, go to his executors ; I have un- 
 derstood that, in some cases, property has thus been lost. If the 
 trustees are not honest, they may put the cestuique trust to the incon - 
 venience of a bUl in equity to enforce the trust. It would be desira- 
 ble, where the object is to endow a Roman Catholic priest or bishop 
 and his successors, that the individual desiring to endow, should be 
 allowed to do so directly/, and not indirectly through the medium of 
 trustees. I do not think that any considerable quantity of land has 
 been possessed for charitable purposes in Ireland. 
 
 Geokge Fkeee, Esq.* — The statute of George II operates as a 
 serious obstacle to gifts of land or money for charitable purposes. I 
 have known but few instances of such gifts being made according to 
 the provisions of the statute. I do not believe, that many bequests for 
 charitable uses are made in articulo mortis, or under any undue influ- 
 ence on the minds or feelings of the testators, or with any improper 
 disregard to the fair claims of kindred or dependents. As far as my 
 observation goes, whatever influence has been used hy those who are 
 usually consulted in preparing testamentary dispositions has been em- 
 ployed in a contrary direction. I am of opinion, that a repeal, or some 
 relaxation of the laws now in force respecting mortmain and charita- 
 ble uses, may be made with safety and propriety. If the obstacles 
 presented by the statute of George II were removed, and owners of 
 real property were enabled to devise the same by will for charitable 
 purposes, considerable portions of such property would be so be- 
 stowed for the endowment of hospitals and schools, and of new 
 parishes, to be created as occasion may require for carrying into 
 
 * A respectable solicitor, of half a centmy's standing. 
 
APPENDIX, 183 
 
 effect the design of our noble Church establishment, there being 
 at this time prevalent a very general, and continually increasing 
 conviction of the necessity for such endowments; more particularly 
 for increasing the miserably defective parochial ministrations of 
 the clergy, attended by most fearful apprehensions as to the conse- 
 quences of the present deficiences which are every day more threaten- 
 ing; and likewise as a means of imparting to the labouring classes a 
 larger share of the benefits derivable from our increasing wealth and 
 prosperity. 
 
 The interests of tenants at rack-rent, occupying land held in trust 
 for charitable purposes, are generally more regarded than iu' the case 
 of lands held by private owners for their own benefit; and where the 
 trusts are honestly and discreetly conducted, such lands are in conse- 
 quence more properly and advantageously mana,ged than lands held by 
 private owners for their own benefit. 
 
 I should think it might be expedient, not to sanction any testa- 
 mentary devise or bequest of property for charitable purposes, unless 
 the same be made twelve months or upwards antecedent to the death 
 of the testator, adopting the present rule in the mortmain act.* It 
 does not appear to me, that any other restrictions or special provisions 
 ■would be advisable, it would be difiicult to propose anything of the sort. 
 
 I have known a great many instances, where wills have been made 
 leaving property, which have been declared invalid in consequence of 
 the statute of mortmain. The instances are, chiefly, where monies 
 given are charged upon land, or have been left to be laid out in land, 
 the testator not being aware of the nicety which brings such bequests 
 under the statute. 
 
 Supposing a person, by enrolling a deed, was allowed to give pro- 
 perty to'a charity, reserving a life-interest in it, that would afford great 
 facility to charitable bequests. 
 
 Our present law affords no protection either to wife or child, and I 
 can see no reason why restrictions should be imposed on the free dis- 
 posal of property with the view of protecting widows and children 
 against gifts beneficial to the public, unless the like protection is ex- 
 tended to them against gifts to worthless individuals, or to strangers, 
 for immoral consideration, or from unjustifiable resentment, or the hke.f 
 
 * This is considered by many witnesses as one of the worst features of 
 the law. And here it may be observed, that all the suggestions for reten- 
 tion or increase of restrictions are contradictory and repugnant, whereas the 
 reasoning against the law is consistent. This remark applies to all the 
 evidence before both Committees. 
 
 f Which would lead them to leave to strangers, as well as charities; 
 perhaps rather more so. 
 
184 APPENDIX. 
 
 The power of bequeathing property to charitable objects, would not 
 generally be made use of for the purpose of disinheriting c^ldren 
 capriciously; occasionally, perhaps, it might. ' 
 
 It does sometimes' happen, that a man takes a dislike to his near 
 relations ; and, in such cases, if he can leave his property to a charity,- 
 it may operate as a salvo to his conscience, if he can thus gratify his 
 ill-humour. Some few men, agEtin, are possessed with a spirit of 
 general misanthropy, which may induce them to select for the enjoy- 
 ment of their property, the unknown participators in a public charity,* 
 rather than any known individual. 
 
 Geokge Habfibld, Esq., solicitor. — I do, not think it was ever 
 designed by the framers of the act of George I, that it should have the 
 extensive construction which has been given to it by the judicature. 
 It is made to extend to all places of worship, to schools of every kind, 
 hospitals, infirmaries, almshouses, institutions for science, literature, 
 and art, and things of that beneficial and intellectual character. It is 
 impossible to convey copyhold property to charitable uses at all ; and 
 a conveyance of fee-simple, subject to rent-charge, is prohibited ; for 
 the act precludes the separation of any interest. Then on the restric- 
 tion against any agreement for the benefit of grantor, you can hardly 
 name a dfeed without some such agreement. The recital of an agree- 
 ment for purchase, is, that he is to have the money; and the act 
 extends even to sales. I would retain the whole act. You give by 
 law. a power to every man who possesses property, to apply that pro- 
 perty by will, in the most unlimited extent, to objects either virtuous 
 or vicious, — yea, may throw your wife and children away, and leave 
 your property to the vilest person in the street. That is the law in 
 every respect, except in cases of charity and beneficence. There is an 
 unlimited power of devise as to the object of a will, except for charit- 
 able purposes. As regards the disinheriting of heirs, there is no 
 obstacle imposed upon a person, except that he may not leave his pro- 
 perty to a charitable purpose. He may leave it to any foolish person, 
 but not to a charity. And I think the law is injurious and prejudicial 
 to all classes of the community, which puts that restraint upon testa- 
 tors. Supposing it was thought inexpedient to give the power of 
 making land inalienable, the power might be given of devising land 
 for a charity in order that it might be sold, and the proceeds given to 
 the charity. Our present law affords no protection to wife or child of 
 testator, and I can see no reason why restrictions should be imposed 
 
 * Or to strangers? The law does not prevent such persons leaving pro- 
 perty to strangers, unless it be for charity. 
 
APPENDIX. 185 
 
 on the free disposal of property, witli the view of protecting widows 
 and children, against gifts beneficial to the public, unless the like 
 protection is extended to them against gifts to worthless -individuals, 
 or to strangers, for immoral considerations^ or the like. I do not 
 think the power of bequeathing property to charitable objects would 
 be made use of for the purpose of disinheriting children capriciously. 
 Occasionally it might ; but these are cases of such rare occurrence as 
 it seems impossible to provide against, unless by enactments which 
 would cause a greater amount of inconvenience than they would pre- 
 vent. It has been found by experience in America, where the most 
 unlimited licence is given, that not the slightest inconvenience is sus- 
 tained from testators being allowed to render land inalienable, while 
 charities are very greatly encouraged. If the statute were repealed, 
 my opinion is, that the efiect would be, in regard to' real estate, much 
 the same as what it is now in relation to personal estate. I do not 
 know of any case where advantage has been suspected of being taken 
 of dying men for charitable purposes. I do not think the just claims 
 of families and relations would be abused by the promotion of charity 
 more than for any other purpose which the law allows. I think a man 
 should have absolute dominion over his property by will for charitable . 
 purposes as he has for any other purposes, and as he has now, in that 
 respect, as far as concerns pure personalty. Charitable legacies are 
 not made in extreme circumstances, nor under undue influence ; the 
 majority of testators leave such bequests with full deliberation. 
 
 R. M. MiLNES, Esq., M.P. — I have interested myself with respect 
 to the revision of the laws of mortmain, and have made inquiries on 
 the subject, especially with regard to the operation of the law in foreign 
 countries. The Chevalier Bunsen has entered very warmly into the 
 question, and applied for information to the professor of law at the 
 university of Basle, who is of opinion that the present law of England 
 on the subject is totally against the spirit of legislation on that subject 
 in the rest of Europe. The present system of law in Germany proceeds 
 upon the principle that real property maybe held by ecclesiastical bodies 
 with the consent of the States. In Prussia no difference is made 
 between ecclesiastical and other corporations. They are all allowed 
 to inherit real property, with the consent of the government, which, 
 the Chamber says, is never withheld unless misconduct or fraud be 
 shown. In Saxony, which bears perhaps the strictest analogy to Eng- 
 land in this respect,- as all ecclesiastical property was confiscated at 
 the Reformation (but instead of being applied, as with us, to lay pur- 
 poses, has been used for the establishment of schools alid other public 
 establishments for the good of the people), no mortmain law whatever 
 
186 APPENDIX. 
 
 seems to exist* It seems understood, as regards the Protestants of 
 Germany, that laws of mortmain are useless ; and, as respects Roman 
 Catholics, no sufficient abuse of testamentary dispositions, or of gifts 
 to Roman Catholic establishments, seems to have occurred to render 
 the absence of laws of mortmain subjects of regret or suspicion. 
 
 Adoiphtis Bach, Esq. (a Lutheran German lawyer). I have had 
 opportunities of becoming acquainted with the laws relating to mort- 
 main in the various continental countries. In Austria, no bequest of 
 real or personal property can be made to any public institution without 
 the consent of the government to the appropriation. The law also 
 gives a reasonable portion, called the portio legitima, to the ascendants 
 or descendants of the deceased, so that relatives are protected. The 
 legitimi is, by the French law, half to one child, two-thirds to two 
 children, three-fourths to three children, or more, so that the testator 
 has always a right to leave one-fourth of his property. This is the 
 groundwork of the law in all the continental states. The Roman law 
 laid down the principle. Up to the year 1749 the law in France was 
 as the law is in this country now. No testator could, devise any real 
 property to any charitable use ; but vrith the downfall of the feudal 
 .system this restriction was done away, and land may be devised to 
 public bodies, the consent of the crown being refused by the civil law 
 for acceptance. In France and Russia, when the relations are not 
 deprived of their reasonable rights, there is no jealousy against charit- 
 able bequests, — quite the reverse. In Italy, Germany, and France, there 
 is far greater freedom as to leaving property for charitable purposes 
 than in England ; and in Germany it is so of the Protestant as well as 
 the Catholic states.* / have never heard of complaints against Catholic 
 priests for obtaining legacies by unchie mearis. The law, as it exists 
 here, does not exist in Europe ; and I think it would be wise to do 
 away with it in this country, especially as all the great benevolent 
 institutions are supported, not by the state, but by the charity of pri- 
 vate persons. It appears to me that every encouragement ought to be 
 given, and no impediment put in the way of the exercise of a full 
 charitable disposition towards the establishment of benevolent institu- 
 tions, such as hospitals and schools of instruction, for the advantage 
 of the poor or the middle classes of society ; particularly as the law 
 in England is different from that which exists in Ireland and Scotland. 
 It has always appeared to me an anomaly in the law of this country, 
 that, on the one hand, a man may leave his wife and children desti- 
 tute, and devise his estate, in violation of all moral principle, to his 
 
 * By reason of the admixture of Catholicity, and its moral influence. 
 
APPENDIX. 187 
 
 mistress, but he is not permitted to leave his property to a charitable 
 institution. I should scarcely think, that in any country it ever hap- 
 pened that there was too much property left for charitable purposes ; 
 but large possessions of the Church passed from the Church to tempo- 
 ral hands at the time of the Reformation. In fact, it was one of the 
 elements of the Reformation. Under the Emperor Joseph, too, the 
 state took possession of a great deal of Church property, that was one 
 of the great reforms* made under Joseph. Speaking, generally, from 
 my knowledge of history,! I should say, there has been, at some period 
 or other, in all states, a feeling that the Church had acquired too much 
 land for the good of the community.J The downfall of the German 
 Empire must be partly ascribed to the fact of too much land having 
 been in the possession of ecclesiastical persons. § 
 
 R. Matthews, Esq., Barrister-at-law.|| This subject divides itself 
 into three parts: the law, as to alienations in mortmain — as to super- 
 stitious uses — and as to charitable uses. Alienation in mortmain, is 
 the vesting of land in a corporation, a body having a perpetual succes- 
 sion; the effect of which is, that the owner never dies, and the land 
 becomes inalienable;^ consequently, if continual accretions are to be 
 made to the quantity of land in mortmain, it may, in time, amount to 
 any assignable quantity, or might swallow up all the land in the king- 
 dom;** and, were there no restrictions imposed upon such alienations, 
 
 * In the nomenclature of Protestantism, reformation means spoliation. 
 
 t How he read history, will be seen soon. 
 
 X In the opinion of those who coveted it themsdves. 
 
 § Yet he had already stated that, ever since the Reformation, there had 
 been one continual process of pillage on the Church, down to the period of 
 the French Revolution, when the empire of Germany fell. Surely it should 
 seem that it was the pillage of the Church which led to the ruin of the state. 
 But judicial blindness is one of the penalties of crime. 
 
 II A respectable lawyer of the Hardwicke and Blackstone school. 
 
 IT Ron sequitwr. The land held by a corporate body, though it do not 
 pass by descent, might be sold or exchanged. 
 
 ** An argument, to which a parallel can only be found in the well- 
 known calculation of Bobadil, whereby he proved how he could demolish 
 40,000 men. There was no restriction on the alienation of land to religious 
 purposes for eight hundred years (the mortmain laws, it has been shown, 
 did not prevent them, and were not meant to) ; and the land of England was 
 BO far from being " swallowed up", that the Crown had never, until the Re- 
 formation, found any necessity to withhold licenses for such alienations, or 
 to pass any measure to prohibit them : and the statutes of spoliation at 
 that era, acknowledge the benefit the country derived from them ! Modern 
 writers talk of one-third of the land having then been in the hands of 
 religious houses ; but, were this true, it is as true that one-third or more of 
 people were maintained by those lands : for the monks and nuns, and the 
 regular and secular clergy, and other classes connected with the Church, 
 were supported, and all the poor of the country. This, of course, is always 
 suppressed by the shallow or dishonest writers who speak thus. It is dis- 
 
188 APPENDIX. 
 
 experience proves the necessitj- of sucli restrictions;* such laws were 
 ' known in the time of the Romans,f and there were similar restric- 
 tions under one of the first Christian emperors. J Selden states, that 
 a license from the Crown was necessary for alienation in mortmain 
 among the Saxons.§ 
 
 With respect to charitable uses, I doubt whether it would be wise 
 to relax the law of George II as to wills. It appears to me, that it 
 might give a very considerable opportunity to ecclesiastics and other 
 persons, of whatever denomination, to surround the death-bed with 
 very improper importunity; and perhaps it is very natural for the 
 human mind to grasp at anything of the kind, to induce a dying man, 
 notwithstanding all the caution that might be administered to him, to 
 think he did something to facilitate his passage to a better world. 
 Lord Hardwicke said, speaking of this act, " The object was, to pre- 
 vent the locking-up of land, and to prevent persons in their last mo- 
 ments 11 from being imposed upon to give away their real estate ; by 
 which means, in times of popery, the clergy got almost half the real 
 property of the kingdom into their possession ; and, indeed, I wonder 
 they did not get the rest, as people fancied they thereby purchased 
 heaven.^ But it is so far from being charity or piety, that it is rather 
 a monument of the impiety and vanity of the founders."** As to the 
 first reason, it was of the last importance to a trading country.ff 
 
 W. Ckipps, Esq., M.P., one of the governors of Guy's Hospital.JJ 
 
 creditable that, in our own day, a lawyer should have to give such superficial 
 evidence. 
 
 * Quite the reverse. t Precisely so, in Pagan times. 
 
 X On the contrary, Constantine abolished them, and Charlemagne reversed 
 the Pagan policy. 
 
 § Selden, then, in this, as in other cases, states what is untrue, and what 
 no contemporary writer asserts. What is true is, that relief from state bur- 
 thens was' conferred by the Crown. And this, Selden and his servile copyists 
 confound with license to alienate. 
 
 II Not at all. The act requires a deed ex&cxA&ditwdve months before death. 
 
 ir How did Lord Hardwicke find that out ? 
 
 ** What is? The giving property for pious purposes? Let it be re- 
 marked, that almost all the religious houses, hospitals, and alnishouses of 
 the ages of faith, were founded by grant, not by last will. And the Reform- 
 ation statute of spoliation recites, that in aU the priacipal of them " religion 
 was well observed". Queer "impiety". 
 
 tt This great lawyer evidently thought commerce of far more import- 
 ance than charity ; or, rather, deemed charity of no value at all. Sir P. 
 Palgrave spoke of his narrow and bigoted mind. But these are expressions 
 far too mild. His soul must have been essentially sordid and sceptical. Yet 
 he has poisoned the Protestant mind on this subject ! 
 
 %X The very institution " improvident" beq^uests to which were made the 
 pretext for passing the act of George II ; which it wiU be seen is utterly 
 evaded. 
 
APPENDIX. 189 
 
 — The hospital has very large estafes in Herefordshire and Lincoln- 
 shire, with which I have personal acquaintance, and which are as well 
 managed as any private estates. I never knew a property where the 
 enterprise of the tenants is more remarkable, or the lands better cul- 
 tivated. The operation of the law of George II is disadvantageous in 
 this respect, that the Herefordshire estates are extremely scattered, 
 and might be advantageously exchanged, but for that uct. Twenty 
 years ago, Mr. Hunt left nearly £200,000 to the hospital. The trea- 
 surer had been in his confidence for m'any years, and Mr. Hunt had 
 persuaded him to lay out a large sum in increasing the site of the hos- 
 pital, and purchasing large buildings and premises in the neighbour- 
 hood ; which some of the governors thought imprudent, the treasurer 
 being at the time in advance.* But on Mr. Hunt's death, this sum of 
 money came to the hospital, the sums advanced were replaced, and a 
 large portion of the legacy immediately applied to the completion of the 
 increased site of the hospital.^ 
 
 R. Netilxe, Esq., M.P.J — In the neighbourhood in which I live, 
 a parish with a population of 823, the value of the living about £109, 
 there is no house; poor-rates are exceedingly high, and are rapidly 
 increasing ; they are , now £785 a-year. All the landlords, with the 
 exception of two small farmers, are absentees. The wages are five 
 shillings a- week ; but there is so little arable land, that it is diificult 
 to obtain work. A person ran away with all the money left to the 
 sick and poor, about £70. A gentleman named Whiting left all his 
 property to his sister, directing her to pay, during her life, £10 a-year 
 to the poor of the parish ; and, at her death, the house, garden, and 
 orchard, were to go to the clergyman for the time being, who was to 
 pay £20 a-^year for the poor. He made his will only a few days before 
 his death (his sister being present) ; and the bequest was invalid, by 
 reason, of the law of George II. The gift to the poor would have been 
 invaluable, £2'0 a-year being more than is subscribed by all the non- 
 resident land owners put together for charitable purposes. 
 
 John Hodgson, Esq., conve3'ancer. — For thirty years I have been 
 
 * Who can doubt there was a secret understanding as to the ftiture legacy? 
 
 t That is, the act of George II was most righteously evaded, and frus- 
 trated by a secret trust; which was considered very proper, because a Pro- 
 testant trust. Very differently are Catholic secret trusts dealt with. 
 
 t The case mentioned by this gentleman is a striking illustration, not 
 only of the iniquitous working of the heathen law of George II, but of the 
 wretched condition to which the Reformation has had the effect of reducing 
 our poor. Contrast the condition of this miserable parish of paupers, with 
 poor laws and absentee landlords, with their condition in Catholic hands, — 
 probably more than one religious house owning land in the parish, — resident 
 landlords, spending their income in charity ! 
 
l90 APPENDIX. 
 
 in the profession, and I have seen a good deal of the law as to rnort'* 
 main and charitable uses. The statute of George II operates unques- 
 tionably as an obstacle to charitable gifts ; it is more expensive, and 
 occasions more trouble. I think some relaxation might be made in it, 
 and with advantage ; and I should think that it would not increase 
 inconveniently the quantity of land conveyed to charitable uses. I 
 have not found in testamentary dispositions any large proportion of 
 personal estate bequeathed to charitable purposes. I am disposed to 
 think the restrictions of the act unnecessarily severe. I would not 
 alter the law as to wills ; but I do not see any advantage in requiring 
 that a grantor of a charitable gift should live twelve months after he 
 has made the gift. It occasions great inconvenience. The act appears 
 to have been made to prevent land from becoming malienable. It 
 was the peculiar state of feeling in the country which led to that. 
 Arguing from analogy-r-from an experience as to personal property — 
 I am not prepared to say that I should expect any great increase in 
 the amount of property left to charitable purposes would arise from a 
 relaxation in the law. I believe, however, vanity has often more to 
 do than charity with bequests for charitable purposes : and I have 
 known property so left, to the prejudice of just claims of near relatives.* 
 
 The statute is evaded to a very considerable extent. It operates, 
 however, as a serious obstacle to the settlement of charitable estates. An 
 alteration, so as to give sufficient liberty for their free settlement,- 
 would be of great benefit to the country, as tending to facilitate the 
 means of religious and secular instruction. In the cases I have known 
 of charitable dispositions, they have not operated at aU unfairly to 
 families. I have not known any large proportion of personal property 
 left for charitable purposes ; nor do I suppose that in many "such cases 
 the wills are made in articulo mortis, or under undue influence, 
 or with disregard to the due claims of relations or dependents ; though, 
 as to personal property, the law allows full liberty of leaving it for 
 charitable or religious purposes. 
 
 C. Hodgson, Esq., Secretary to Queen Anne's Bounty. — Under an 
 act of George III, that kind is exempted from the operation of the act 
 of George II, and landed property can be left to the corporation, with- 
 out license, to any amount. I ,have known no case in which what 
 may be termed the natural expectations of heirs, have been imjustly 
 
 * The witness was asked no more ^.bout that matter. He was not asked 
 to enter into the cases. Why 2 Because they were Protestant cases. He 
 practised entirely among Protestants. In no instance has any case of this 
 kind been examined into, in which the testator was Protestant. Oompare 
 this with the uncharitable and malicious examination into Catholic cases ! 
 
APPENDIX. 191 
 
 frustrated by the facility thus afforded. I think the act of George II 
 might be so far relaxed, as to allow of land being left for any charitable 
 purpose by will (or deed to take effect at death), protected in the same 
 way as deeds are under the statute. 
 
 George Jelp, Esq., Secretary of the Church Building Commis- 
 sion. — By the church-building acts, the mortmain acts do not apply to 
 endowments or grants of real property for the purposes of church 
 building, or for the use of any church or chapel, or the clergyman 
 thereof, or the repairs ; provided that no endowment exceed on the 
 whole £300 a-year. Looking at the spiritual destitution prevailing in 
 the country, increased facilities ought to be given. I know an instance 
 of a party who wished to give £10,000 for these purposes ; and, in 
 consequence of the mortmain law, I advised him to hand the money 
 over to some friend whom he could trust, who would in conscience 
 and honour be bound to apply the money as the donor intended.* It 
 is thought better to trust to honour and conscience of friends, than be 
 involved in the niceties and difficulties of the mortmain acts. I think 
 the evils apprehended from a relaxation of the law, are rather specu- 
 lative than real. As to inalienability, that objection could be very 
 easily obviated, by providing that all land in mortmain should be ex- 
 changed, like any other land, under certain conditions, and with cer- 
 tain consents. I would repeal the mortmain acts, and the distinction 
 between real and personal property ; I would enable anybody to leave 
 real or personal property, for charitable and religious purposes, to 
 trustees or corporations, under certain restrictions ; that if the testator 
 had wife, chUdren, or grandchildren, he should not be at liberty to 
 leave by will, for these objects,f beyond a certain proportion of the 
 whole property. This is to guard against the improbable risk of a 
 person disinheriting his family, in >order to build churches or endow 
 schools. I do not advise any other safeguards. Making a bequest 
 or endowment depend for its validity upon the accidental circum- 
 stance of the party living a certain time afterwards, is no clear test 
 of his being in a sound and disposing state of mind. The statute of 
 George II is a restraining act against charitable uses ; and I hope a 
 more enlightened spirit now pervades than when it passed, especially 
 considering the claims of the numerous poor and uneducated upon the 
 comparatively few rich. 
 
 * That is, he constituted a spiritual trust, which the law could not touch ; 
 and so evaded an unjust law. 
 
 t There again is the distinction adverted to by Catholic theologians on 
 the subject. 
 
192 APPENDIX. 
 
 CHiBLEs Gibson, Esq., a solicitor at Manchester. — I have had an 
 opportunity of seeing the working of the mortmain acts, particularly 
 as respects the Roman Catholic charities. Persons desirous of leaving 
 real property, or property in the nature of realty, to chariti'es, leave it 
 absolutely to clergymen of the Church of Rome, relying on their in- 
 tegrity and honour to apply it to charitable purposes, and without 
 specifying any object whatever; thus leaving it entirely to the discre- 
 tion of the clergyman as to what particular charity he may apply it, he 
 being ignorant of what the donor's intentions were. He is left to act 
 entirely according to his own particular disposition, or what he may 
 think best for himself. I am satisfied that the clergymen who have 
 these trusts reposed, in them, do act most honestly and honourably, 
 and devote every farthing of the money to charitable purposes ; but it 
 is a risk, as the donor is prevented from expressing the particular ob- 
 ject he has in view. I should not advise any one to interfere as to 
 funds known to be under the cpntrol of the clergy, without express 
 trusts. We know there may be secret trusts existing, which, if 
 brought to light, might upset the bequest. Sums for superstitious 
 uses are always left absolutely. If the sum were large, it would 
 be in the discretion of the clergyman as to whether to apply it for 
 masses or charity. / have not known any cases in which property of 
 any amount has been left to charitable purposes, by a testator having a 
 wife and family.* I think the law ought to be relaxed. 
 
 The Bishop or LonUon. — Looking at the present state of the law, 
 as regards the property of the Church, the term mortmain has very 
 little meaning in it; for the land which is now in possession of the 
 Church is liable to the same incidents as any other land may be; it 
 may change hands, in certain cases, by sale or exchange, or a lease 
 may be granted for its improvement; and therefore, so far as the 
 country is concerned, the objection as to land coming into mortmain 
 no longer exists. The only valid ground of the modern mortmain act 
 (the statute of George II), is the injustice of disherison. The opera- 
 tion of the act, I consider injurious. There is nothing which leads 
 me to apprehend undue influence with persohs, particularly in sickness, 
 from clergymen or others, for the purpose of obtaining grants or be- 
 quests for the Church; there is nothing in the principles of our Church 
 which need lead any person to entertain such an apprehension even in 
 theory, and in practice it is equally groundless. In the Roman Catho- 
 lic Church, there is reason to apprehend this influence, because the 
 doctrine of that Church is this: it is taught in the Scriptures, that 
 
 * Because he practised principally or exclusively among Catholics. 
 
APPENDIX. 193 
 
 ttere are three modes of washing out the stains of sin — alms, prayer, and 
 fasting."* ( Tkomassinus on the Discipline of the Church.f) — And, there- 
 fore, if djdng persons are persuaded, that by leaving large bequests for 
 charitable purposes, or for the purpose of having so many masses said for 
 the repose of their souls, they can wash out the stains of sin, or escape 
 a certain period of the pains of purgatory, J there would be great dan- 
 ger of unjust disherison. The danger of this is of course much less 
 in our own Church, which teaches no such doctrine, but merely in- 
 structs the clergyman, when he visits a dying man, to exhort him to 
 settle his worldly affairs, and to be liberal to the poor.§ A Roman 
 Catholic may be anxious to provide for the dissemination of what he 
 considers the truth, and other members of the Church would be equally 
 anxious to provide for the dissemination of what they consider the 
 truth. The one, however, is more accessible, in his dying moments, 
 to the arguments I have described than the other, to whom such an 
 argument could not, with consistency, be addressed. 
 
 My decided opinion is, that the legislature ought to encourage edu- 
 cation in conformity with the Established Church, and to tolerate all 
 other kinds of education consistent with the first principles of religion 
 and morality. As to whether those who dissent from the Established 
 Church might not be allowed to give or bequeath property, to an ex- 
 tent beyond what the act of George II allows — for the promotion of 
 education according to their own opinions — I am hardly prepared at 
 present to give a positive opinion on the subject. Some relaxation 
 might be admitted with regard to other religious bodies ; but whether 
 to the same extent as with respect to the Church, I am very doubtful. 
 I think the policy of this country since the Reformation, with respect 
 to restricting the Roman Catholics in matters concerning the propa- 
 gation of their principles, to be defensive. || The difference between 
 their Church and our own is of so essential and vital a kind, that I am 
 not prepared to consent to any measure which shall increase the faci- 
 lities they now possess of advancing the boundaries of their Church in 
 this country. I do not think the fear of scandal, or any feeling in the 
 
 ■* See note, ante, p. 116. 
 
 t An old French writer of the last century; by no means a general 
 authority. Why did not the bishop quote the decrees of the Council of 
 Trent? (See ante, p. 115.) 
 
 X If this is so ; but where will the bishop find it so laid down ? The pas- 
 sage he quoted would not : for where is the context ; and where the teach- 
 ing of the Church, that, to make alms efficacious, they must be given in 
 faith and penitence 1 
 
 § " Earnestly to exhort him." And by what motives 1 
 
 II That is, because Catholics do not hold justification by faith alone, their 
 charitable bequests are to be proscribed. 
 
194 
 
 APPENDIX. 
 
 Jloman Catholic Church, would be a check against any member of that 
 Church, abusing the power he possessed. They would hold it to be 
 anything but a scandal.* I am looking at the question throughout 
 in its bearing upon the Church, and should be glad to see the law re- 
 laxed so far as the Church is concerned ; but I think, if you go beyond 
 that, other questions will arise, of very great diffictdty and delicacy.f 
 Dr. Cox, President of St. Edmund's Catholic College, Old Hall, 
 and Professor of Theology there. — It is contrary to what is taught in 
 schools of theology, in the Roman Catholic Church, that a priest should 
 abuse the influence he possesses, in order to obtain property for his 
 Church, or for charitable purposes. The Catholic priest, in all schools 
 of theology I know of, is taught in all respects the principles of com- 
 mon justice between relatives and the testator; the nearer the rela- 
 tionship, of course the greater the obligation : as of parents to provide 
 for their children. It is so required ; and a Catholic pastor who would 
 act contrary to this, would be considered as giving great cause for 
 scandal to all to whom it might be known afterwards. This may be 
 seen by reference to the rituals, in which directions are given to the 
 clergy. The rituals — particularly foreign rituals — are very express 
 upon this point, showing that it is the duty of the priest not at all to 
 interfere with the temporal affairs of the penitent ; but if he should be 
 required to advise his penitent, he must counsel him to leave his pro- 
 perty in the order in which nature requires it should be left. The 
 ritual of the diocese of Langr^s, lately published by the present Arch- 
 bishop of Paris, says : " Two things are to be distinguished in the 
 will of the rich man, — ^the good which he -svishes to do to this or that 
 person, and the obligations of conscience. With the first, which is 
 purely temporal, the priest has nothing to do. Si, sous pretexte de 
 religion il suggere les dispositions particuli^res, s'il se sert de 1' ascend- 
 ant que lui donne la confiance ou la faiblesse du malade pour le de- 
 terminer a preferer un heritier a un autre; il abuse de son ministire sacrfe 
 et il le profane : il s' expose de plus a devenir I'objet de la haine et des 
 inimitifes que resultent toujours de ces preferences." Directions are 
 then given by the ritual when the pastor may take part in making the. 
 
 * Did the bishop remember the commandment, " Thou shalt not slander 
 thy neighbour"? See the evidence of Dr. Cox as to this charitable state- 
 ment. 
 
 t But his lordship's arguments go the whole length of doing away with 
 
 the law altogether : and upon his principles, if it be relaxed as to the Church 
 
 "of England, and retained as to other Christian bodies, it would be a purely 
 
 penal laiw against the latter; for he proves that, on social or political 
 
 grounds, there is no need for such a law. 
 
APPENDIX. 195 
 
 will of the rich man. (1) He must be requested to do so by the tes- 
 tator and by his family. (2) He should object, as far as he can, to be 
 a party in making the will. (3) He is to be guided in his counsel 
 only by the good and welfare of the family, and to consider himself 
 responsible to the testator, to his family, and to God, for the advice 
 he shall give. (4) He is to avoid being named executor or guardian.* 
 In some countries, a priest would be suspended if he should allow 
 himself to be named executor or guardian. Though this ritual was 
 published in Paris, it contains the principles on which all Catholic 
 clergymen are bound to act. 
 
 I have known cases of bequests to the Church being refused, when 
 prejudicial to the natural heirs. One in particular I have permission 
 to mention. A solicitor called, eighteen months ago, on the Catholic 
 bishop of the London district, and informed him that a lady was de- 
 sirous of leaving the whole of her property for the use of the Church 
 in the London district ; the property being of considerable amount, I 
 believe to the amount of £60,000. The bishop immediately objected, 
 and said he could not listen to any such proposal : this lady had rela- 
 tives, for whom it was her duty to provide ; and therefore it would be 
 impossible for him to receive her property to their prejudice. The 
 lady said that she had no near relatives ; none nearer than nephews 
 and nieces. The bishop still objected, knowing that, if he received 
 the whole property, even although he was justified in conscience in so 
 doing, it might be a cause of scandal to the public ; and finally it was 
 arranged by the bishop, that he should receive a portion of the pro- 
 perty, instead of the whole. In the meantime, the relatives interfered : 
 they persuaded the lady, a short time before her death, to change the 
 deed, and draw up one irreversible, and entirely got the property from 
 the bishop. The trustee for the bishop, however, would not assent to 
 this, as the relatives had used undue influence ; and the case is now 
 in Chancery. The nephews had acquiesced in the original arrange- 
 ment; and it was more distant relatives who got the lady into their" 
 possession, and induced her to make the second deed : and the nephews 
 stated, that they were persuaded undue influence had been used upon 
 her.f Every priest, and his bishop, would consider that he had been 
 guilty of injustice, if he should influence a person to alienate his pro- 
 
 * " Instructions sur I'administration des Sacraments, par le Cardinal de 
 Luzeraes, ancien Evfique de Langres, troisifeme Edition, revue, etc., par M. 
 I'Abbe Affre," torn, ii, p. 367. Paris, 1837. 
 
 t But the Protestant public would not consider this " undue influence", 
 because exercised against a Catholic prelate. If exercised in his favour, 
 they would have caused a great outcry. 
 
 o2 
 
196 APPENDIX. 
 
 perty to the prejudice of his relatives. The principles of justice can 
 suffer no modification. 
 
 Thomas Eastwood, Esq., of Brindle Lodge, Lancashire. — I am a 
 Roman Catholic, and have presented a petition praying for an inquiry 
 into certain transactions, alleged to be violations of the provisions of 
 the mortmain law. In one affair* I am personally interested ;\ and, 
 with the permission of the Committee, am prepared to go into it. Mr. 
 Heatley, who was my wife's uncle, was an elderly man, and a bachelor. 
 In 1824 he made a will, by which he left his property to his confessor, 
 Mr. Sherborne, with the exception o/" £6,000 to each of his two nieces,X 
 of whom my wife was one. In 1829 he made another wiU,§ leaving the 
 house (Brindle Lodge, on which he had expended £18,000 or £20,000) 
 and some portion of the property, to us;|| but the rest to Mr. Sher- 
 borne. The second will^ gave the relatives the house and land, and 
 various small estates, which the first will did not. In consequence of 
 the last will, I am in possession of Brindle Lodge.** "We contested the 
 will with him. The whole of the property left to Mr. Sherborne was 
 under a secret trust, which was denied. Mr. Sherborne also received 
 £10,000 from Mr. Heatley during his lifetime, with which he pur- 
 chased an estate, If paying the rents to Mr. Heatley during his life. 
 / believe the bishop could compel him to apply all the property for the 
 purposes intended by the testator ; and that there was an understanding 
 that it should be applied to what the law calls superstitious uses.\\ I 
 know of other cases. A Miss Brettarghs left £100 each to two sisters 
 and a brother, and £100 to her brother's children ;§§ and the rest to 
 
 * The " affair mentioned in the Essay, ante. 
 
 + The very reason why he ought not to have been received as a very impar- 
 tial witness. 
 
 X A trifling "exception"! And he took care not to inform the Committee 
 that the nieces had each ^10,000 in her own right. Why was their uncle 
 to leave them a penny? He took caie, also, to avoid mentioning that this 
 first will was made when Mr. Sherborne was in Spain ! So much for the 
 value of unsworn eocparte evidence of persons "personally interested". 
 
 § Made under the influence of Mr. Sherborne. 
 
 II " Some portion". The greater portion ! 
 
 IT Made under the confessor's influence. 
 
 ** Yet the ungrateful man grudges the residue for pious purposes, and 
 harrasses the priest with a chancery suit ! And these are the people who 
 complain of the "rapacity" of the clergy ! There is no such thing as rapacity 
 in a relative ! Yet the relative is rapacious for self; the poor priest is anxious 
 for charity ; and in this, as in other cases, received but a paltry sum for 
 himself, and the bulk on secret spiritucd trusts. 
 
 ft Doubtless for pious purposes. See what he afterwards states. 
 
 XX So Mr. Sherborne, on this man's own showing, derived no personal ad- 
 vantage from the property. Why was he not ashamed to harrass and assail 
 him by a suit, then ? 
 
 §§ Whom perhaps the testator did not deem deserving of more, or likely 
 
APPENDIX. 197 
 
 Mr. B., a grocer. / believe he has not benefited by it : he paid £1,700 
 to a gentleman of high family.* Upwards of £2,000 had passed into 
 Mr. B.'s hands before her death.f There was another case, of a 
 Miss Frazer's will. She left all her property to her brothers, charged 
 with a legacy to nephews of £200, and of £20 to Mr. Sherborne, and 
 £10 to another priest; and, by a spiritual secret will, left £30 to the 
 poor, £100 to poor nuns, £100 to a district fund, £50 to poor priests 
 in Spain, and £10 to the person employed in attending her.J 
 
 Had the cases occurred in France, Mr. Sherborne, being Mr. 
 Heatley's confessor, would not have been allowed to take the pro- 
 perty ; for the French code prohibits confessors from receiving any 
 Iegacy.§ Miss Frazer, before she died, gave Mr. B. a cheque for 
 £1,000. I advised the brother to treat the spiritual will as not a legal 
 document, and to pay no attention to it.\\ I advised him also to with- 
 hold the £1,000. But Mr. B. informed him it was intended for 
 Ushaw College ; and Mr. Frazer gave it up upon the spot,^ and paid 
 it to Mr. B. for that purpose. In another case, a Miss H. gave £500 
 to Mr. Sherborne. 
 
 The Rev. T. SHEEBOKKE.^Miss H. never was a penitent of mine. 
 She was an acquaintance of my mother's, and applied to me to know 
 whether I would take charge of £500, for the education of a youth at 
 a coUege. I did so ; and the money was given for that purpose, and 
 for which at the present day a boy is educated : and the rest was left 
 entirely to relatives.** 
 
 The case of Miss Brettargh was this. She had been a servant' in 
 the E. family, and desired to leave the bulk of her money to Mr. E., 
 in whose house she had lived as servant, but wished to do it so as not 
 to hurt his feelings, and applied to me about it : and I said that she 
 could leave.it to Mr. Bellington, a person of conscience and honour, 
 who woyld apply it as she wished ; and that she could leave some- 
 
 to do any good with it, AU depends on the character and position of the 
 relatives. 
 
 * Evidently for pious purposes. t For similar purposes, no doubt. 
 
 X What could be a more proper rule 1 
 
 § Yes ; but in France property could only be left for a priest's personal 
 benefit, there being no law against " superstitious uses". 
 
 II Here is a specimen of the consciences of such as cry out about the 
 rapacity of the clergy ! 
 
 IT Like a man of honour and of religion, with too much conscience to 
 accept the advice given him by the owner of Brindle Lodge. 
 
 ** Not a shilling did Mr. Sherborne get in this case. Contrast his conduct 
 with Mr. Eastwood's, who, aware that where the bulk of the property was 
 left to him, and only a portion to charitable purposes, he would, if not legally 
 bound, appropriate aU ! Compare the clergyman with the layman ! Yet 
 we uever hear of the rapacity of the laity. 
 
198 APPENDIX. 
 
 thing to her relatives in the same way. She did so : the relatives re- 
 ceived what was left for' them; Mr. B. received the £1,700; and I 
 received nothing, except £5 in lieu of mourning.* As to Miss Frazer, 
 I never was her confessor. She sent to me repeatedly, but I never 
 went, until her brother's wife pressed me to go. She wished to leave a 
 sum of money so that one of her relatives should always be educated 
 at a college ; and I recommended her to give the cheque for the 
 £1,000 for that purpose. For some time, owing to Mr. Eastwood, it 
 was not paid : subsequently the money was paid, and the boy is at the 
 college. I suggested, at her request, some other charitable legacies. 
 She offered me £20, which I at first declined, and only accepted when 
 she said that, if I did not receive it, she would not leave a similar sum 
 to another priest.f As to Mr. Heatley, his nieces had an independent 
 fortune of their own of £10,000 a-piece.\ The first will was made 
 while I was in Spain,^ and was far more advantageous for me than the 
 second, which was made when I was at home.\\ The second will was 
 made without any suggestions or proposals from me. In 1832 he 
 made a codicil, increasing what he had already allowed his nieces. The 
 will was disputed by Mr. Eastwood ; but shown at the trial to be pro- 
 perly executed: and SirW. FoUett, Mr. Eastwood's counsel, declared 
 in court, that his client and counsel were satisfied that there was no 
 foundation for the proceedings that had taken place. Mr. Cresswell 
 said : "The verdict will be taken for the defendant, and the will be 
 confirmed ; and the bill in equity dismissed." The parties confirmed 
 the will ; and I had hoped that all heart-burnings were terminated. 
 Mr. Heatley's further whole income was about £1,646 per annum; 
 and leaves in land to his next of kin about £600 a-year, and a house 
 worth about £20,000, which would be about £1,600 a-year, allowing 
 5 per cent, for the money invested in land. The rest was left to me ; 
 the rental not reaching £500 a-year. The Carleton property was pur- 
 chased with £10,000 he gave me. I was at perfect liberty to apply 
 the property to my own purposes : if I were to spend any part of my 
 income, from whatever source derived, improperly, I should be ac- 
 countable for it hereafter ; but I am at liberty to apply it as I think 
 
 * Here the "rapacious" priest, out of J2,000, receives £5 ! 
 
 t Here the " rapacious" priest interests himself in many most excellent 
 charitable objects, the principal of which was in favour of a relative, and 
 reluctantly accepts a paltry £20 ! 
 
 X A fact which Mr. Eastwood took care not to mention, and which shows 
 the nieces had no right to any expectations at all. 
 
 § Another fact wMch Mr. Eastwood omitted to mention, and is decisive 
 as to undue influence. 
 
 II This fact shows conclusively the groundlessness of the complaint against 
 the latter. 
 
APPENDIX. 199 
 
 fit. Whatever Mr. Heatley thought, he never opened his lips to me : 
 so far as I had reason to know his thoughts, his design was to leave 
 me at perfect liberty as to the application of the property. He never 
 mentioned any charitable or religious purpose. The bequest had no 
 more of a religious or charitable character in it, than was implied in 
 the supposition that I should dispose of it for good purposes, and in a 
 proper manner. If the mortmain restrictions had not existed, in all 
 probability this monej/ would have been disposed of in charitable and reli- 
 gious purposes, instead of being left personally to me. I never knew 
 anything of the " spiritual will". Mr. Heatley was in the habit of 
 giving large sums of money to the poor. I should act on the spiritual 
 will, so far as it was reasonable : I should have done as I should have 
 wished another to do for me.* 
 
 The Rev. F. Tbappes. — I am a Roman Catholic priest. My facul- 
 ties were withdrawn from me about four years ago.f I could appeal 
 against the suspension to Rome ; but I do not appeal, because it is too 
 much plague, and not toorth my while. As far as the Roman 
 Catholic Church in England is concerned, the law of mortmain is in- 
 operative. They get as much as if there were no act. The act is 
 evaded in various ways, which make it useless. If I wanted to leave 
 a property to any chapel or college, / would leave it to a clergyman, 
 who would not fail to hand it over.% If the mortmain law were re- 
 pealed, no further ill consequences would ensue than at the present 
 day ! I do not think it woidd be justifiable to obtain property for the 
 Church, otherwise than by recom,mending charitable objects. I have 
 known instances in which persons in very poor circumstances of life, 
 who have had uncles and aunts, have left £600 or £700 to the Church, 
 when it would have been useful to the relatives. § I have no means of 
 
 * In the instance of Mr. Sherborne, we see a Catholic priest avowedly 
 having influence over several very wealthy persons, and on several more or 
 less so, and 'using that influence entirely for charity, not receiving above 
 such paltry legacies as £20 or £5 for himself; and, though legally absolute 
 legatee of large sums, yet morally and re^i^'ioMs^y acknowledging them to be 
 received for spiritual purposes ; and, according to the evidence of the man 
 who sued him in courts of law, compellable by the bishop to apply it to such 
 purposes, supposing him ever to have required such compulsion ; which all 
 the evidence in his, and other cases, shows Catholic priests never do require. 
 Contrast this with the conduct of laymen acquiring legacies for themselves. 
 
 + A witness, who was obviously called by the Committee because they 
 hoped, from his being under a suspension, they might elicit something 
 unfavorable to his fellow clergy. 
 
 X This is invaluable testimony, from a hostile quarter, of the probity and 
 honesty of the Catholic priesthood. 
 
 § But would the relatives have made a good use of it ? And were they 
 near relatives ? On both points be is silent ; and, as to the former, the best 
 judge would be the testator. 
 
200 APPENDIX. 
 
 knowing any instances in which undue influence has been used ; but 
 have known instances in which sums have gone to churches, which it 
 struck me would have been much better laid out among indigent and 
 near relatives.* 
 
 REPORT. 
 
 The Select Committee appointed to inquire into the operation of the Laws of 
 Mortmain, and of the restrictions which limit the power of making 
 Gifts and Bequests for Charitable and Religious Uses, and to whom 
 several Petitions were referred, and who were empowered to report the 
 Minutes of Evidence taken before them to the House ; — Have examined 
 the matters to them referred, and have agreed to the following Report : 
 
 " Your Committee have thought it right to consider carefully, and at some 
 length, the origin, progress, and present state of the Law of Mortmain in 
 England ; and for the purpose of throwing light on matters naturally obscure, 
 have turned their attention to the laws on the subject which obtain not only 
 in other parts of the empire, but also in foreign countries. 
 
 " The Mortmain Laws had their origin in a state of society widely different 
 from the present ; and nearly, if not all, the reasons which appear to have 
 induced the Plantagenet and Tudor kings and parliaments to enact the 
 various laws restraining the alienation of real property, first to religious, 
 and subsequently also to lay corporations, from the time of Magna Charta 
 down to the Reformation, exist no longer. The learned and interesting 
 evidence of Sir Francis Palgrave shows that those restrictions were imposed, 
 not only from jealousy of the great and increasing power of the religious 
 bodies, but also with a view of preserving to the lord, and to the king, as the 
 chief lord, the advantages and incidents of tenure, and of maintaining the 
 military defences of the kingdom, which were weakened whenever land, 
 which then sustained all the civil and military bvurdens of the state, fell into 
 Mortmain. 
 
 " With the destruction, therefore, of the religious houses at the Reforma- 
 tion, the gradual decay of military tenures, and their entire abolition after 
 the Restoration, the chief political reasons for stringent Mortmain Laws 
 ceased : and your Committee would direct attention to the significant fact, 
 that from the reign of Queen Elizabeth to the accession of the House of 
 Hanover, the general tenor of the public mind, as evidenced by the legisla- 
 ture, the judicature, various royal proclamations, and the acts of numerous 
 private persons, was strongly iu favour of alienation of property, real as well 
 as personal, to pious and charitable purposes. 
 
 " Your Committee, aware that no law can be properly understood unless 
 the reasons on which it was founded, and the evils against which it was in- 
 tended to guard are known, have endeavoured to make themselves acquainted 
 with the causes which led to the passing of the 9th of Geo. II, c. 36, which 
 is in fact the Mortmain Law at this moment. Although the reasons which 
 led to the original enactment of Mortmain Laws, and those which subse- 
 quently induced their mitigation and discontinuance, appear to have been 
 those stated in the preceding paragraph, your Committee have failed to 
 arrive at any certain knowledge of the true grounds on which the Act of 
 Geo. II was passed. Indeed, the insufficiency of the reasons assigned in the 
 reported debates is such as would rather lead to the inference that some 
 
 * It had not '' struck" the testator so ; and he knew best. 
 
APPENDIX. 201 
 
 apprehensions, which it was not thought wise to make public, must have 
 operated in addition to the avowed motives of the legislature. 
 
 " The provisions of this law, which prevent lands, or anything savouring 
 of the realty, from being conveyed to any body or bodies, politic or corporate, 
 for any charitable purpose, unless by deed executed twelve months, and en- 
 rolled six months previous to the donor's death, have been construed by the 
 judicature in the strictest sense their words would bear. Copyhold property, 
 money out on mortgage, land left to be converted into money, money left to 
 be converted into land, and, as it is asserted, railroad and canal shares, even 
 when declared by act of parliament to be personal property, are all held to 
 be affected by that statute, and the courts refuse to marshal assets in favour 
 of any public object, however charitable or beneficial. 
 
 " Your Committee would here point out the inconsistency which runs 
 throughout this unfavourable construction of the law. The recital of the 
 act states its object to be, to prevent the disposition of lands whereby the 
 same should become inalienable. But lands left with a direct injunction that 
 they should be sold, meet with no more favour than bequests of personalty 
 to be converted into land : although in the similar case of a bequest to an 
 aUen, the legatee, who is disqualified from holding the real property, is 
 allowed to take it as money. Again, although the law wUl marshal assets 
 so as to throw upon the real estate " debts and other charges ordinarily 
 chargeable upon the personal estate of the testator, thus exonerating the 
 latter for the benefit of the legatees, it refuses to marshal assets in favour of 
 charitable legacies, nor will it permit them to be charged upon, or satisfied 
 out of the land, or other real estate of the testator, nor indeed out of any of 
 his personal estate, partaking in any manner of the nature of realty.' Sup- 
 posing, therefore, the alleged object of the statute to be a proper one, it 
 appears to your Committee that land left to charities, with a direction to be 
 sold, and all virtually personal property, do not fairly come under the intent 
 of that statute, nor do they think it just that charitable legacies should 
 alone be excepted from the advantage of having assets marshalled in their 
 favour. Upon this point, your Committee would direct especial attention to 
 the valuable opinion of Mr. Jarman, quoted by Mr. Hadfield. 
 
 " With respect to the operation of this statute, your Committee find that 
 while many good and charitable purposes have been thereby defeated, liti- 
 gation and the unjust disherison of heirs have not been prevented. That it 
 should have failed in both these objects, the former of which was alleged in 
 the debates, the latter in the preamble of the act, is not surprising, because, 
 with the exception of such purposes as are forbidden by the general rules of 
 common law, an entire freedom is allowed to a testator, who may dislike his 
 heir, of leaving his property to any person, or any object that does not come 
 under the designation of a charitable use, and because, as Mr. Jarman points 
 out, ' where the feelings of mankind are not in unison with the provisions 
 of the Statute-book, ingenuity is racked for evasive expedients, and a testator 
 will sometimes rather confide his property to the honour of a stranger, than 
 abandon a scheme to which he is impelled by a conscious rectitude of pur- 
 pose.' Of the truth of this opinion, your Committee have had abundant 
 evidence on the petitions which were referred to them ; but in consequence 
 of the peculiar nature of that evidence, containing reflections on private 
 character, and in many instances not bearing at all on the general object of 
 their investigation, your Committee have exercised a discretion in suppress- 
 ing certain portions of it. It appears, however, from the reported evidence, 
 that the law, rendered more stringent as regards Roman Catholics by the 
 statute against superstitious uses, is evaded by them without much difliculty, 
 and the mode of evasion, not unfrequent, it would seem, among them, is not, 
 the Committee would observe, practised by them alone. Prom all this it 
 would appear, that whUe the astute and determined man may balk the ex- 
 
202 APPENDIX. 
 
 pectations of his heirs, many a laudable and just design is defeated through 
 the intricacies and perplexities of this law. 
 
 " In order to arrive at a knowledge of the laws respecting Mortmain and 
 Charitable Uses and Trusts in other countries, with a view of comparing them 
 to those existing in England, your Committee have taken the evidence of a 
 learned German jurisconsult, Mr. Bach, which, with the information afforded 
 by Mr. Burge, the Lord Advocate of Scotland, the Right Honourable Anthony 
 ^lake, Mr. Field, and Mr. Milnes, enable them to state that in Germany, 
 France, Italy, Spain, the United ' States of America, the British Colonies, 
 Ireland, and Scotland, the laws are far more favourable to charity than in 
 England ; nor can they learn that any jealousy is felt of, or any evil occurs 
 from, the latitude allowed, even in Catholic countries, to charitably-disposed 
 persons to dispose of the whole or a large portion of their real property to 
 pious or charitable purposes. In the countries of continental Europe, that 
 provision of the old civil law which sets aside a portio legitima for the as- 
 cendants or descendants of a testator, and which once had its counterpart in 
 the law of England, is, up to this day, found to be a sufficient protection 
 to the heir, while the power exercised by the sovereign, of ratifying or 
 annulling bequests to particular charities, secures the community from the 
 damage or scandal which a dangerous or improper disposition might give 
 rise to. At present it is a matter of just astonishment to intelligent foreign- 
 ers, that while the laws of Ireland, Scotland, and our Colonies assimilate 
 more or less to those of continental Europe in this matter, those of England 
 stand alone in their uncharitable strictness ; and this unfavourable distinc- 
 tion appears to them, as it does to your Committee, the more unintelligible, 
 because ' in this country all the great benevolent institutions are supported, 
 not by the state, but by gifts of private individuals' ; whereas in those coun- 
 tries the state undertakes to perform many of those necessary and charitable 
 duties, which, at the same time, it encourages private munificence to aid it 
 in fulfilling. 
 
 " Having thus brought before your notice, as succinctly as is possible, the 
 present state and practical operation of the Mortmain Laws in England, 
 their origin, inconsistency, and complexity, the means which exist of evading 
 them, the opportunity thus afforded to fraud and deceit, and the vriser and 
 less restrictive laws which obtain in other parts of our own empire, as well 
 as on the continent of Europe, and in the United States of America, your 
 Committee think it right to add that they have carefully considered the 
 objections which are popularly taken against a relaxation of the existing 
 laws. These objections, like many of a popular nature, appear to have their 
 foundation rather in historical tradition, than in a clear perception of the 
 truth^and the feelings on which they rest may be classed as personal, reli- 
 gious, and political. 
 
 " The personal objection arises from a dread lest the just expectation of 
 the heir should be defeated, if license to alienate real property by will to 
 charitable purposes were allowed a testator. If, however, the expectations 
 of the heir are to be preferred to the wishes of the testator, that preference 
 should obviously be enforced, not against charitable uses alone, but against 
 aU dispositions other than to the heir ; yet the law allows a man to pass over 
 his wife and children, and to leave his property to an entire stranger. And 
 there seems to be great truth in the opinion expressed by a witness, that if 
 it was thought necessary to secure the heir from being disinherited quoad 
 real property, there was even more cause for guarding him against disin- 
 herison quoad personalty, inasmuch as the pride of ancestry, and the wish to 
 hand down to posterity landed estates, are likely to operate in the former 
 case as a safeguard to the heir, which he is deprived of in the latter ; whereas 
 the law leaves that personalty at the free disposal of the testator. Your 
 Committee would likewise suggest, that the fact of a person being anxious 
 
APPENDIX. 203 
 
 to leave a portion of his property to pious and charitable purposes, is in 
 itself some evidence of his being actuated by high and moral feelings, and 
 therefore unlikely to forget th^ sacred claims of kindred and dependents. 
 
 " The only imaginable case in which these considerations may be supposed 
 unavailable, is that which your Committee have recoguized as the religious 
 objection, namely, the fear lest undue influence over the mind of a dying or 
 languishing person, shovJd be exercised by a minister of religion in favour 
 of charity or religion, to the prejudice of the heir. And this is certainly the 
 objection to which they are inclined to attach the most weight. Lord Hard- 
 wicke is even reported to have said, ' One of my chief reasons for laying a 
 restraint on such donations is, lest the clergy of the Established Ghurch 
 should be tempted and instructed to watch the last moments of dying 
 persons, as insidiously as even the monks and friars did in the darkest 
 times of superstition and popery : and if ever we should have an ambitious 
 clergyman for a prime minister, it would be the only way to acquire an 
 interest at court, or preferment in the Church. Your Committee would 
 refer to the remark of the Bishop of London on this dictum, and indeed to 
 all experience of the past, as depriving this objection of most of its force as 
 far as it relates to the Church of England ; and they cannot but think that 
 the authoritative statements of Dr. Cox, with respect to the doctrine of the 
 Church of Rome, the sentiments of those who guide its practice, and the 
 influence of public opinion on the great body of its clergy, are sufficient to 
 dispel apprehension of the influence of the Roman Catholic priesthood. But 
 while they think the popular fears on this subject exaggerated, your Com- 
 mittee admit the.propriety of guarding against possible abuses by provisions 
 founded on such principles as that of the Scotch Law of Death-bed, by which 
 the heir can defeat a will made to his prejudice within sixty days before 
 death, if the testator were then iU of his mortal disease, or that of the Code 
 Napoleon, which renders the confessor incapable of inheriting from his 
 penitent ; as well by safeguards similar to that contained in the measure 
 now before parliament for regulating charitable bequests in Ireland. 
 
 " With respect to the third objection, that which is taken on political 
 grounds, your Committee believe very few people would be disposed to virge 
 it at this day. T^he whole argument derived from the incapacity of land in 
 mortmain to sustain the feudal civil and military incidents obligatory on the 
 land, has for two hundred years ceased to have force, or even meaning, as 
 applied to existing tenures. The dread entertained by political economists 
 lest land held in mortmain should not be available for commercial purposes, 
 must be now greatly mitigated by those alterations in our laws whereby every 
 clergyman may now lease his land for farming purposes, in the same manner 
 as lay landlords do : and your Committee would direct attention to the sug- 
 gestions of Sir F. Palgrave and Mr. Hadfield, with respect to the possibility 
 of devising means whereby land in trust for public purposes might, with due 
 provision for the le -investment of its proceeds, be allowed to come into the 
 market. The evidence of Mr. Cripps and Mr. Frere shows that charitable 
 estates may be managed in every respect with as much benefit to the general 
 interests of the community as those of private individuals. 
 
 " But among some even of those who are inclined to attach no great weight 
 to such objections against a more liberal law with respect to donations for 
 charitable and public purposes, an opinion seems to exist that the various 
 exemptions which from time to time have been granted to particular cha- 
 rities, are so many and so ample, as practically to amount to all the relax- 
 ation of the law that is necessary. But even if this were a correct view of 
 the practical results of the existing law, it should seem to be but an un- 
 soimd state of things, when exemptions from a law are of such magnitude 
 as to deprive that law of vitality and power. But upon mature deliberation, 
 your Committee cannot coincide in the belief that the exemptions are such 
 
204 APPENDIX. 
 
 as to render further relaxation undesirable. The whole tenor of the evi- 
 dence submitted to them on this point is, that although many good and 
 charitable purposes are exempted from the stringent operation of those 
 laws, many difficulties still remain, even in the most favoured cases, and 
 many good and excellent objects are either altogether proscribed, or sur- 
 rounded with peril, owing to their operation. Our experience, indeed, of 
 the results of these partial exemptions, is calculated to dispel many of the 
 objections felt to an imiform modification of the present system of restriction. 
 Tour Committee would direct attention to the fact, that even to Queen 
 Anne's Bounty, a charity more favoured by the law than perhaps any other, 
 the amount of landed property bequeathed by wUl has not been so consider- 
 able as to warrant an apprehension that were the same favour extended to 
 other charities, any great portion of the land of the country would fall into 
 mortmain. 
 
 " In submitting this Report to your consideration, your Committee would 
 remark, that from the intricacy and delicacy of the question, the nicety of 
 its details, the conflicting judgments and opinions of eminent lawers on 
 various points, they find it impossible to present in a Report, with entire 
 confidence in its accuracy, a full and explicit abstract of the law practically 
 in operation with respect to mortmain and charitable bequests ; they there- 
 fore beg leave to refer for a copious and learned digest of the historical part 
 of the question, to the evidence of Sir Francis Palgrave, corroborated, as it 
 is, in a remarkable manner by that of Mr. Surge ; to the evidence of the 
 Bishop of London, Mr. Neville, Mr. Hadfield, Mj. J. Hodgson, and Mr. 
 Mathews, for proofs of the injurious and unwise stringency, of the operation 
 of the law ; and to that of the Rev. Thomas Sherborne, Mr. Gibson, and Mr. 
 Jelf, of the power which exists of evading its restrictions, supposing testators 
 are determined to do so. 
 
 " In conclusion, although your Committee do not feel authorized by the 
 terms of reference, to report in favour of any specific alterations of the Laws 
 of Mortmain, they feel bound to state, from an attentive consideration of 
 the evidence submitted to them by witnesses whose means of information 
 and authority must be held to be great, that the operation of the laws is 
 most unsatisfactory, leads to doubt, expense, uncertainty, and litigation, and 
 frequently defeats good and pious purposes, which the present aspect of the 
 country would induce all men to wish fulfilled ; while from the existing 
 facilities for evasion, they cannot be regarded as serving the main purpose 
 for which they are supposed to be maintained, by securing the heir from the 
 unexpected alienation of property to which he might reasonably have hoped 
 to succeed. 
 
 " 24 Jvly 1844." 
 
APPENDIX. 205 
 
 No. II. 
 
 COMMITTEE OF 1851-2. DIGEST OP THE EVIDENCE. 
 
 Mr. Chapman, a conveyancer.^ — The proper meaning of the word 
 mortmain is, the conveyance of land to corporations and their succes- 
 sors, in which case there can be no death, and consequently no descent 
 or devise, and there weerfnot be any ahenation; so that the same lands 
 might remain in the same body for ever without any change. The 
 •popular sense of the word mortmain is, where lands are conveyed 
 or devised to individuals, in trust for charitable purposes; in which 
 case, they are regarded in law (as distinguished from equity) merely 
 as individuals; and, upon their deaths, the land would go in the 
 same way as on the deaths of indi^dduals ; but, as a court of equity 
 would restrain them from dealing with the lands in any other way than 
 for the purposes designated in the trust, the lands would, in fact, not 
 be alienable in the sense of passing from one set of beneficial proprie- 
 tors to another. In the first place, where land is held strictly in mort- 
 main, it remains in the same body; in the other case, the body that 
 holds the land changes, but the trusts and purposes remain the same, 
 so that the evils incident to mortmain are the same in both cases ; 
 and the popular term "mortmain" is applied, as well to those gifts to 
 trustees as to gifts to a corporation. In this state of things, ihe act of 
 George II was passed, enacting, that no lands, or tenements, or here- 
 ditaments, nor any sums of money, or personal estate, to be laid out or 
 disposed of in the purchase of lands, tenements, or hereditaments, 
 shall be given, granted, aliened, assigned, or appointed to any persons, 
 bodies corporate, or otherwise, for any estate or interest whatever, or 
 in any way charged or encumbered, in trust, or for the benefit of any 
 charitable use, unless such gift be made by deed made and delivered, 
 in the presence of two witnesses, twelve months before the death of 
 the donor, and be enrolled in Chancery within six months after the 
 making thereof; and unless the same be made to take eifect in pos- 
 session for the charitable use intended, immediately from the making 
 
 * This witness stated the nature of the old statutes of mortmain — omit- 
 ting any mention of the procedure provided by law — by which religious 
 houses were practically enabled to dispense with them, upon payment of a 
 fine for the alienation. He also most utterly misrepresented those statutes, 
 as interfering with conveyances to persons not incorporate, in trust for pious 
 uses ; whereas these trusts were recognized by law up to the Reformation, and 
 after the Reformation, for Protestant purposes, until the act of George II. 
 
206 APPENDIX. 
 
 thereof, and be without any power of revocation, reservation, trust, or - 
 condition, for the benefit of the donor as grantor, or any persons claim- 
 ing under him any estate "or interest". A great many cases, and a 
 great deal of question, have arisen as to this last restriction; leaseholds 
 for years and mortgages (though personal estate), and sums of money 
 charged on land are within the prohibition. But there is a class of 
 cases in which the law is in a state of uncertainty relating to property 
 which has come into existence since the statute, consisting of gas 
 shares, canal shares, shares in banks, railways, docks, and in public 
 companies. With respect to any interest in land, the courts have been 
 very acute in construing the act; and every possible interest is excluded. 
 Even money left to build a church is held a bequest of real property 
 within the prohibition, unless the land on which the church is to be 
 built is already in mortmain. And land directed to he sold, and the 
 produce to be applied to charitable purposes, is also within the'prohi- 
 bition, as well as pure personalty directed to be laid out in land. As 
 to personalty otherwise there is no restriction. The distinction made 
 between personal estate connected with land, and personal estate un- 
 connected with land, is inconvenient: it produces litigation; for, when 
 a testator leaves a legacy to a charity, the executor is bound to divide 
 the property into mixed personalty and pure personalty, and pay a 
 part only of the legacy, the courts' having put this construction, that 
 the charitable legacy is payable rateably out of both funds, and fails so 
 far as the prohibited fundyContributes. Now, it being in doubt, whe- 
 ther certain items are mixed or pure personalty, the executor is obliged 
 to have recourse to the Court of Chancery to decide what he ought to 
 pay. I think no mischief can arise from giving lands for sites of build- 
 ings of public utUity. If land be given for a charity, the trustees can- 
 not sell without a power in the deed. If a donor give land, it may be 
 considered that his intention ought not to be interfered with by having 
 the land aliened, even if the same revenue were secured from the 
 funds; he might consider the land a better security. 
 
 There could be no objection to land being bequeathed to charitable 
 purposes and then sold, and the produce applied to those purposes, 
 assuming that it is desirable that personal estate should be given for 
 charitable purposes. If a testator sell his land before he executes his 
 will, and bequeaths the money to charitable purposes, the heir is as 
 efiectually disinherited as he could be.by a devise of the land itself. 
 There is no advantage in keeping up the distinction between person- 
 alty connected with land, and personalty not connected with land. 
 The same restrictions which are applied to land should be applied to 
 personalty; there should be general legislation applicable to both 
 
APVENDIX. 207 
 
 directed against undue influence. It is not desirable to put any restric- 
 tion upon the power of a testator as to the disposal of his property, exr 
 ceptfor charitable purposes. I should be disposed to give a man the 
 right, if he pleased, to disinherit his own family. A man ought only 
 to be allowed to leave small sums for charity. I would make no ex- 
 ception of any charit)-, nor any exemption of any religious community, 
 except as to land for sites of schools, chapels, and other religious build- 
 ings, hospitals, museums, and all public institutions. The restrictions 
 of the statute do not apply if the " use" be not " charitable". Now, 
 there is a case, where a man left property for the purpose of building 
 a tomb for himself, and this was held not to be a " charitable use"; 
 and I believe, according to the law as it stands, there is nothing to 
 prevent a man from leaving estates of any amount for the purpose of 
 building tombs for himself in every church in England. A man might 
 lay out all the funds he died possessed of in the erection of a mauso- 
 leum. Any amount of real property may be bequeathed for any 
 purpose which is not prohibited by law as immoral, or wrong, or 
 charitable. 
 
 Mr. Shelfoed. — I think the provisions of the statute of George II 
 are more stringent than a due regard to public policy would render 
 desirable. .There are many restrictions which operate very detriment- 
 ally to charitable purposes : as the not allowing the donor to retain a 
 life-interest, and allowing him to have the power of revocation ; and 
 requiring him to live twelve months. It is inexpedient to require a 
 gift to take effect in the lifetime, as it operates as a restraint on cha- 
 ritable donations, and prevents many which it is very desirable to en- 
 courage. A deed, even though it is to take effect at death, or reserv- 
 ing a life estate, in its effect is similar to a will — is a more formal 
 instrument ; and though a deed may be obtained under undue influ- 
 ence, a will may be more easily than a deed, as a will is more often 
 made without the intervention of a legal adviser. Even if made on a 
 death-bed, it is less possible that it would be open to such influence. 
 And though a great deal has been said about imdue influence, I have 
 in my researches found only two reported cases, regarding Protestants 
 or Protestant dissenters, where the question of spiritual influence has 
 come into question, and the deeds were set aside in consequence. In 
 both cases the bequests were for the personal use of the party. I am 
 not aware of any cases reported of gifts in trust for Roman Catholic 
 charitable purposes, having been set aside on the ground of undue 
 influence by spiritual ascendancy. I think, however, the case of Mid- 
 dleton V. Sherborne, 4 Younge and Coil's Exch. Rep. is referred to in 
 the Report of 1844. In that case, it was held that a hill in equity 
 
208 APPENDIX. 
 
 lay to set aside- a will made under the influence of spiritual terrors. It 
 was also laid down, that where a person acting as spiritual adviser 
 of a testator, takes advantage of that situation to become the agent 
 and manager of the testator's temporal affairs, and, while holding 
 those opposite characters, becomes a devisee of very large gifts under 
 the testator's will, there is strong ground for inquiry as to undue in- 
 fluence. / do not agree in the opinion expressed by Mr. Chapman, as 
 to limiting charitable bequests. I rather think that the power of testators 
 to dispose of their property in favour of charities should not be further 
 restrained. If it be necessary to protect children (which is not often 
 the case) I would make a difference : that if a man had children, or 
 other near relatives, he should only be allowed to leave a smaller por- 
 tion to charities than in other cases. There used to be a similar law 
 in this country. I am not aware of any cases of undue spiritual influ- 
 ence exercised in the Koman Catholic body, for the purpose of obtain- 
 ing charitable donations. 
 
 Mr. BtTNTiNG said : — I do not see why a person should not be per- 
 mitted to dispose of his property, for charitable purposes, by vdll, as 
 well as by deed. A will is revocable, and affords opportunity for re- 
 consideration ; a deed conveying property for charitable purposes is 
 not revocable. I do not think that any practical mischief would ensue, 
 as regards any of the objects against which legislation is directed, if 
 the power of devising realty were given, as well as of conveying it. I 
 think that the main point is, to get a law resting upon a good and 
 firm foundation ; and that there would be plenty of checks (in the 
 natural cupidity of people, and their proper regard for the interests of 
 their families, and numberless other considerations) upon any impru- 
 dent use of it. I am very much confirmed in expressing that opinion, 
 by what appears to me the very general testimony of two gentlemen, 
 who were examined before the Committee of 1844. I would give an 
 effectual and fair restraint upon the gift of property for charitable pur- 
 poses, whether by deed or by will. I would put an additional restraint 
 upon wills made for charitable purposes, not put upon wills, when 
 made for the benefit of individuals. I would require such a period to 
 intervene between the execution of the will and the death of the tes- 
 tator, as would, as far as possible, insure the absence of undue death- 
 bed influence. It does not appear to me, that any law can prevent 
 the continuous operation of a class of principles or feelings upon any 
 man's mind, carried on during a long course of years, inducing him 
 when well and perfectly collected, to dispose of his property for cha- 
 ritable purposes. I would not require any additional formalities in the 
 execution or attestation of wills when made in favour of charitable or 
 
APPENDIX. 209 
 
 religious purposes. The law is so strict as to be continually hrolcen. 
 Requiring an official person to attest a will by which property was 
 given for charitable purposes, would operate as an undue restraint. 
 Testators disposed, from motives however proper, to give their pro- 
 perty, or any portion of it, for charitable purposes, are extremely anx- 
 ious not to have the fact known : and that applies equally to the case 
 of a small legacy as to the case of a large one. The requisi- 
 tion of an interval of twelve months between the making of the deed 
 and the death, is objectionable: a shorter time would be sufficient; 
 It is a great evil to keep property of large amount in uncertainty for any 
 length of tiine; and that is a reason for imposing as little limitation as 
 you can consistently with the general object of the law. There should 
 be as little interference with property as possible. The system of en- 
 rolment is defective; secret trusts are favoured by the illiberal policy 
 of the present law; i. e. its stringent provisions. Then as to the requi- 
 sitions, that the deed shall take effect immediately and be irrevocable, 
 and that there shall be no reservation — they apply equally to sales, 
 as to where there can be no reason for such provisions, and they work 
 in a manner exceedingly objectionable. / see no reason why a volun- 
 tary gift for charitable purposes should he made to take effect imme- 
 diately in possession, and he irrevocable. The policy of the law ought 
 to be, to leave'the donor as long and as large a discretion as possible. 
 If there were any difference, it ought to he in favour of a will which is 
 revocable, as against an irrevocable deed. Then as to the requisition 
 prohibiting any revocation, or condition for the benefit of the grantor, 
 the same principle applies as to the case of gifts; but in the case of 
 sales it is most absurd and grievous. The system of secret trusts would 
 be prevented by empowering real property to be devised by will> and 
 empowering the donor to retain a life-interest or any funds or benefit 
 for himself or wife, or any other dependent. While the law, to use 
 Mr. Jarman's language, compels people to have recourse to evasive 
 expedients in order to defeat its stringency, the tendency would not be 
 checked by increasing the stringency of the provisions of the law. By 
 the act of George II, property is not prevented from passing to charit- 
 able purposes, but legal difficulties are thrown in the way of all legal 
 transactions connected with property. It operates, in some measure, 
 as a discouragement upon transfers of property to those purposes, but 
 to no great practical extent; to nothing like the extent to which a 
 really good law, based on sound principle, would operate. With re- 
 spect to gifts of personalty, I would apply the same restrictions to per- 
 sonalty connected with realty, and personalty unconnected with realty. 
 I would require that the party should live six months after execution 
 
310 APPENDIX. 
 
 of the gift, and leave the general question of incompetency, actual or 
 constructive, to be dealt with by the Court of Chancery. In all the cases 
 I have seen (and they are very numerous), / have never known a case 
 of an improper disposition of money to the disparagement of the just 
 claims of family or kindred; I think those attempts are extremely rare. 
 Thomas Bates, Esq., conveyancing harrister. — I know of attempts 
 made to evade the act of George II, especially one used in the Metho- 
 dist connection. It is this : that the testator should leave his pro- 
 perty to trustees, upon trust to sell and to pay the proceeds to certain 
 parties whom he should name, and then he leaves the necessary secret 
 instructions with other parties, which are not to be delivered until the 
 property is sold: and then they expect that these parties would apply 
 it according to those directions. If the document containing the secret 
 instruction were duly attested under the present wills act, it would be 
 a testamentary paper; as it would have been under the old law. And 
 if there had been any communication between the testator and trustees, 
 then they would be trustees in equity as if the document had been 
 part of the will; but it is a very much mooted point, what the effect 
 would he if there had been no communication between the testator 
 and the devisees, and they admitted that they intended to apply the 
 property to charity. In that case, I think the best opinion is, that 
 the court would hold that they were bound to apply it to charity, and, 
 if the charity were illegal, the heir would take it. The practice pre- 
 vails to a very great extent among dissenting communities. The laws 
 have been extensively evaded: I mean among the Quakers, the Bap- 
 tists, and the Methodists. I have not known of any similar cases 
 among the Catholics. I think the law ought to be the same as to real 
 and personal property; and as to all religious communities. I would 
 not shut out all gifts by will. It should depend upon the relatives a 
 man has. If he have near relations — wife and children — ^he ought not 
 to be allowed to leave anything to charity; but, if he have no near re- 
 lations, he might be allowed to leave a certain portion, according to 
 the amount of the property. My attention has been called to undue 
 influence of solicitors, not of clergymen. Solicitors have, from their 
 position, opportunities of carrying into effect purposes of their own. 
 For instance, in one case, the solicitor was to manage secret trusts. 
 The case would not be met by incapacitating persons filling fiduciary 
 positions from taking any benefit, or holding the ofiice of executor or 
 trustees. I think it is beneficial for the country generally, that a tes- 
 tator should be able to do whatever he likes with his property. But 
 I think it is necessary that parties who are likely to be influenced im- 
 properly, oiight to be restrained in the exercise of this power. And I 
 
APPENDIX. 211 
 
 have found, that parties who gave most money to charities are liable 
 to be imposed upon, they are more easily induced to give property for 
 charity, because, when a man is dying, he generally supposes that he 
 is saving himself by giving his property to charity. The Church of 
 England, in the Prayer Book, holds out encouragement to persons to 
 make bequests of their money for charitable purposes, as a means of 
 saving their souls, or aiding them in that way. There is in the " Visita- 
 tion of the Sick" a direction, that the minister who attends upon a 
 man's death-bed, ought to see that he shall give money to the poor, 
 or endeavour to obtain money for charitable purposes. If persons will 
 not give to charity in their lifetime, they ought not to have the power 
 of leaving to charity after their death. I have never known a case 
 where a clergyman of the Church of England was involved in anything 
 unfair about a will for a charity. All the cases I know of are where 
 dissenters, and missionaries, and people of that sort, have been cour 
 cemed. 
 
 Mr. HiTCHiN, assistant-secretary to the Bible Society. — There are 
 many cases in which persons are suddenly brought low, and make their 
 wills and leave bequests to charities. It is not an unfrequent thing 
 for a bequest to be made three months before death or less. If the law 
 were, that no bequest should take effect if not made six months before 
 the death of the testator, it would materially affect us. And if any 
 additional formality were required, either that the vidll should be exe- 
 cuted before an official person, or in any other form than is now re- 
 quired, it would be prejudicial to our Society. We have lost several 
 bequests through the operation of the act of George II. 
 
 The Rev. Henky Venn, secretary of the Church Missionary 
 Society. — Out of thirty- one legacies received by the Society, taking 
 the time between the date of the will and the time of its being proved, 
 seven were made under six months, and four under twelve -months. 
 My experience leads me to suppose, that a good many wills are re-made 
 towards the period of a person's death, so that a restriction against 
 charitable legacies under a wiU made within six months of death, 
 would deprive us of many legacies which had been intended for, and 
 bequeathed to the Society, for many years. One of the wills to which 
 I allude, contained a legacy of £8,000; suppose that a previous will 
 had been made, with the same legacies, a considerable time before 
 death; yet, if a new will were made within six months, and I have 
 known such cases, we should have been affected by. the law. 
 
 *rhe Right Hon. Pembekton Leigh. — The policy of the act of 
 George II is, that a person shall give against himself, and not against 
 his successor; that if he makes a gift, he shall give out and out; that 
 
 p3 
 
212 APPENDIX. 
 
 it shall not be a posthumous act; and that he shall not retain a bene- 
 ficial interest in the property, or have the power of defeating his own 
 gift. If there were a clause added to the gift, be it by will or by deed, 
 that the land should be sold and the money invested in the funds, I 
 think that would preclude the necessity for imposing any restraint 
 upon the alienation of real property for charitable purposes." The act 
 is attended with extreme inconvenience; because any property consti- 
 tuting a specific lien upon land, is considered, though personal estate, 
 as coming within the operation of the act. The consequence is, 
 considerable litigation; and, if the strict law were.always administered, 
 scarcely any property could be safely administered. I do not think 
 that, with regard to the law generally, which regulates bequests for 
 charities, it is expedient that there should be any alteration in the law. 
 I have not seen any practical inconvenience arising from it. I do not 
 remember any cases in which large sums — large in proportion to the 
 means of the persons giving — lave been bequeathed or given to cha- 
 rities; of course there have been cases in which indiscreet and foolish 
 dispositions have been made for charities as well as to other purposes; 
 but I do not recollect any particular instances. I have not practically 
 seen, that the exercise of individual discretion in making donations or 
 bequests of personal property, has been carried to such an extent in 
 this country, as to induce me to recommend any proposition for ex- 
 tending to such gifts or bequests the restrictions which prevail with 
 respect to real property; on the contrary, I submit that the power 
 might be enlarged to the extent I have mentioned already, i. e. that 
 such bequests should not be made void so far as they are given out of 
 personalty savouring of realty; I have not observed any inconvenience 
 from the law under which the Court of Chancery sets aside deeds and 
 wills obtained under undue influence. / have known many instances 
 in which bequests have been impeached on the ground of their having been 
 obtained by individuals for their own benefit, but I do not recollect any 
 instance in which it was alleged, that a bequest in favour of a charity 
 had been fraudulently obtained. The Court of Probate would refuse 
 to give validity to a bequest in those cases in which the Court of 
 Chancery would set it aside. Few wUls can be disposed of where 
 legacies are given to charities without a suit in Chancery; and where 
 a suit does arise, the expense of making the apportionment is enor- 
 mous. The books are full of cases in which questions have arisen, 
 whether particular portions of property came within the description of 
 personalty savouring of realty. The law is uncertain, therefore, as to 
 what descriptions of property come within the operation of the act. I 
 should not recommend, with respect to personal property, that the 
 
APPENDIX. 213 
 
 same rule sliould be applied to what is called pure personalty, as that 
 which now applies to personalty savouring of realty. I do not think 
 that the inconveniences arising from gifts of personalty in favour of 
 charities, are such as to require legislative interference. The evil, 
 practically, might be remedied, if the court could do that justice to 
 charities which it does to all -other parties, namely, by marshalling the 
 assets; but, if a legislative remedy were introduced, I should think 
 the object would be effected very well by declaring, that charities 
 should, with respect to legacies, be upon the same footing as all 
 other legatees, except that no specific gift of leasehold, or mortgage,, 
 or specific lien upon land, should be permanently vested in charity. 
 Of course it depends entirely upon the view taken of the policy of per- 
 mitting gifts to charities at all: I do not see any inconvenience in it; 
 but supposing it permitted, I can see no difference between a legacy 
 being raised out of a mortgage, out of leasehold estate, or out of any- 
 thing else, and being raised out of pure personalty; but there is great 
 objection to permitting a leasehold estate or mortgage to be vested in 
 a charity, because it brings with it the whole inconvenience against 
 which the statutes of mortmain are directed. I think the law, as it 
 stands, sufficiently guards against the evil of undue influence. Sup- 
 posing undue spiritual influence to exist, I do not think any extension 
 of the law desirable to meet such a case: I do not see how it is pos- 
 sible. If it be undue influence, it amounts to what a court of equity 
 calls fraud; if it be not undue influence, I do not see how you can 
 provide against it. The question of making any person, flUing a fidu- 
 ciary position, incapable of being executor or trustee of a charitable 
 will, is so very important, that I should hardly be inclined to give an 
 opinion upon it until some cases of practical inconvenience had arisen. 
 It would apply, not to the case of charities only, hut to all persons at- 
 tending about the death-bed in a fiduciary relation. There would be 
 great inconveniences in adopting such a rule ; persons in a fiduciary re- 
 lation are often among the nearest relatives of the party. I do not 
 think it desirable to give any court power of setting aside a testamen- 
 tary charity, where undue influence, not amounting to fraudulent in- 
 fluence, can be' shown to exist. 
 
 W. H. KiDDELL, Esq., Roman Catholic, conveyancer and barrister, 
 brother of Mr. Riddell, of Cheesebome Grange, Northumberland. — 
 The more ancient of our charitable foundations, prior to the statute of 
 George II, are regulated by means of two or three sets of deeds. The 
 first is the conveyance to a Protestant trustee ;* the second declares 
 
 * See the example cited ante, p. 63. 
 
314 APPENDIX. 
 
 the trust of the deed to be, to pay over the annual proceeds ' to a Ca- 
 tholic trustee ; and then the latter has a letter, directing him to what 
 particular objects the funds are to be given. The reason of the arrange- 
 ment was, that the transaction, being for lloman Catholic purposes, 
 was (thus) void. It was^ the practice of Koman Catholic donors to 
 state the objects of the gift in the broadest and most general terms, to 
 prevent discovery. The foiTa of the old foundations is still followed 
 to this extent, that the property is vested absolutely in persons, with- 
 out any express trusts being declared. I have advised the plan gene- 
 rally adopted in dissenters' foundations : to vest the legal estate in one 
 set of trustees, and declare the trusts of the deed by a second deed, so 
 that the trusts may not appear on the title, and then to enrol both 
 deeds under the act of George II ; but this plan has not been approved 
 of, for this reason, that the legal estate might come to persons over 
 whom the Roman Catholic bishops would have no control, as the heirs 
 of the surviving trustee.* 
 
 No deeds for Catholic purposes are enrolled. I consider those deeds 
 would bind all parties taking an interest under them. Upon a gift for 
 spiritual or ecclesiastical purposes of the Roman Catholic Church, a 
 bishop of the Church of Rome would be examined, and his evidence 
 be conclusive as to the nature of the purposes, and the discipline of 
 the Roman Catholic Church. The subject of superstitious uses seeiiis 
 to be in a very anomalous position. If money be given for the main- 
 tenance of a Roman Catholic priest, -it is a valid donation ; but if you 
 couple with that donation a request or trust that he shall say prayers 
 for the dead, you render the gift "superstitious", according to our 
 interpretation of the law. There is an objection to the present state 
 of the law, allowing personalty to be given on a death-bed without 
 any restraint. It is well that ministers of religion should be guarded 
 from suspicion of influence, which might interfere with the exercise of 
 their spiritual functions. But I should not recommend the imposition 
 of the same restrictions upon personalty, as are imposed by the act of 
 George II with respect to realty. There ought to be the power of 
 giving personalty by will for charitable uses. I am not prepared to 
 say what restrictions I should recommend ; but I conceive the principle 
 of the Scotch law is sound, that the testator should not execute his 
 will in his last illness, and should be able to attend to his affairs after 
 
 * Who might be Protestants. Mr. Riddell represented the bishops as 
 apprehending that they might lose the control over the' charity. Would it 
 not have been more fair to state it thus, — that the charity might be wholly 
 lost to the Catholic Church ? Of course, if trusts are legally declared, they 
 are enforceable only so far as the law allows of them. 
 
APPENDIX. 215 
 
 its execution. The provisions of the law are too stringent to be ap- 
 plied to personalty. 
 
 J. Beat, attorney (Protestant). — I was solicitor in the Brindle will 
 case : other cases in consequence came under my cognizance.* One 
 was that of Miss Salmon's will, leaving about £10,000 for masses, etc. 
 There was a "spiritual will". The Northumlerland Riddetls were 
 very much annoyed hy that v>ill:\ they say that about £20,000 passed 
 from that old lady, which ought to have gone to her nephews and 
 nieces. Roman Catholics have said, "we have been injured by rela- 
 tives having been induced to leave money in this style". There ought 
 to be a check where parties in extremis leave money to persons not 
 related to them, disparaging brothers and sisters, or nephews and 
 nieces.J 
 
 C. F. Skikbow, Esq., solicitor, of the firm of Gregory, Faulkner, 
 Co. — My firm were solicitors in Metairie v. Wiseman. I conducted 
 the suits ;§ and, in consequence, the law of mortmain was under my 
 attention for a considerable time : and I arrived at this inference, that 
 with reference to personal estate there is no protection at all.|| I think 
 Metairie v. Wiseman (Cardinal Wiseman was only nominal defendant, 
 because he was vicar-apostolic when the suit began ; he never had 
 anything to do with the transaction) shows that there ought to be re- 
 qiiired in cases of personalty, as in realty, that a deed or will should be 
 executed a certain time before death, and with a clause of revocation.^ 
 If these things had been required, that case could not have occurred.** 
 They gave Carri power of revocation ; but they gave it to a clergyman, 
 and did not leave the power with him, so that they could not revoke. ff 
 
 * He mentions the cases stated by Mr. Eastwood, and satisfactorily ex- 
 plained by Mr. Sherborne, ante, p. 113. 
 
 t Which may account for the tone of Mr. Riddell's evidence. 
 
 j Although, like Mr. Heatley's nieces, they have J10,000 each, in their 
 own right ! 
 
 § And admirably qualified, on that account, to express an impartial opinion. 
 
 II Exactly the opposite inference to that which the case justly leads to ; 
 and that which tie great equity lawyer, Mr. Pemberton Legh, states in his 
 evidence — that no new law is required to protect parties from undue influ- 
 ence on testators. If it were otherwise, how could the court have entertained 
 that case, which, pertaining to personalty, was not affected by the statute of 
 George II, and was left to the general rules of equity ? Tet, if undue influ- 
 ence hadbeen established, the court could have set aside the wiU. What is 
 evidence like this witness's worth 2 
 
 IT Exactly what the act of George II does not allow! 
 
 ** How so 1 See the very next sentence. How carelessly he speaks ! 
 
 ft Bevoke what 1 The deed simply re-transferred the stock into Carry's 
 name, adding Cooke as a co-trustee ; Carre alone having power to alter the 
 disposition of the fund, which, during life, was not to pass from him. So, in 
 fact, he never lost the disposition of the fund. 
 
316 APPENDIX. 
 
 The Attorney and Solicitor-General have told me, that they never' 
 knew a case in which an information has been filed by a Roman Ca- 
 tholic against a Roman Catholic priest, for the administration of a 
 charity.* In Carre's case, the deed and will were prepared by Mr. 
 Cooke, a barrister, without the intervention of any attorney: in an 
 emergency of that kind, this would not be irregular ; but he ought to 
 have taken instructions from the testator.f He made another will, for 
 a Mrs. Tucker, who died last year, aged 89. She made Dr. JMagee 
 residuary legatee, and also co-executor vidth Mr. Corhead, her brother- 
 in-law. She leaves to her servant £100, and part of her books, furni- 
 ture and linen ; to her brother and brother-in-law the rest of her 
 goods ; leaving a number of legacies to relatives and priests, and pro- 
 viding that if any of the latter should fail or become void by reason of 
 any rule at law, they should go to the residuary legatee. The brother- 
 in-law is badly off. I have seen Mm once or twice,\ but he does not 
 wish anything to he done.^ In another case, a Mr. De Sa, who had 
 no near relatives except nephews and nieces, most of whom lived in 
 Portugal, made a will leaving various sums to Catholic priests. || 
 Then there is the case of Mr. Taylor, of Weybridge. He left all his 
 real and personal property there to his children for their life, and at 
 their deaths to the Roman Catholic bishop. There was considerable 
 fraud with reference to this will. I believe the story was, that the old 
 gentleman made a family will, which all the family knew of; but after 
 his death they found, to their surprise, another document, altogether 
 unlike the one which the family had known of, and this was proved.^ 
 The family are not disinherited by the wiU ; they have possession of 
 the property for life; but they are not in such "possession of the 
 property" as would be ordinarily understood : and the use of that 
 word by the cardinal was a " pure fraud" .^^ 
 
 * Did they tell Mr. Skirrow the reason ! That discloaure would invalidate 
 the trusts, under the statute of superstitious uses ; and that it was rarely, if 
 ever needed, because Catholic priests honourably fulfil the trusts. See evi- 
 dence of Mr. Gibson, 1844, ante, p. 93. 
 
 t Precisely what he did do. See the statement of the d9,se, ante, and the 
 evidence' of Mr. Cooke, post. This witness speaks with such carelessness, 
 that he does not even seem to know or think what he says. How could it 
 be otherwise : a heated and interested witness, ex parte and unsworn ? 
 
 % With what amiable intentions, may be inferred from the next sentence. 
 
 § Greatly to the disappointment, no douht, of Mr. Skirrow. 
 
 |[ Why not ? No near relatives, and those he had distant, and not in want. 
 This man, like all of his class, seems to speak of any legacies to a priest as 
 a sort of crime, or, at least, a subject of suspicion. What a love of religion 
 is here shown ! 
 
 T An audacious mis-statement ! Mr. Taylor distinctly stated the family 
 not only knew of it, but assented to it, all but himself. 
 
 ** This is quoted as a specimen of the reckless and injurious assertions of 
 
APPENDIX. 317 
 
 There was another case, of Kelly v. Norris, mentioned by Dr. Cox 
 before the Committee of 1844. The old lady transferred £40,000 stock 
 in trust for the bishop of the district, reserving a life-interest,* with a 
 power of revocation. The deed was in the same form as in Carre's 
 case. Some time after she made it, a nephew of hers, named Kelly, 
 came to her house : he and his wife paid great attention to her, and 
 she was desirous of revoking the deed. She was getting very old and 
 very ill. The nephew was alarmed about the deed : he was told by 
 the old lady that some deed had been executed, but she did not know 
 what the effect of it was.f A deed of revocation was signed, reciting 
 that some deed had been signed ; and the old lady died. The relatives 
 applied to have the stock transferred to them. It was refused, and 
 there was a suit. The bishop filed a bill to set aside the deed of 
 revocation, as a fraud upon the old woman.| 
 
 J. A. CooKE, Esq., barrister at the Chancery bar. — I have practised 
 for thirty-two years. I have been a member of the congregation of 
 Somers' Town chapel for eight or nine years, where M. Carre con- 
 stantly attended. I have known Mr. Holdstock, the priest, since 1837. 
 On the 29th February 1847, he told me M. Carre wished me to assist 
 in making a disposition of his property. Mr. Holdstock is a man 
 entirely devoted to his priestly duties, living for the last twenty-five 
 years among the poor of his district ; and he was to acquire no personal 
 advantage from the transaction. I saw M. Carre, § and asked him what 
 
 these unsworn witnesses. The man contradicts himself continually. " Not 
 disinherited"; "in possession of the property", yet "not in possession": use 
 of that word " clear fraud". He is very fond of the word "fraud", and con- 
 tinually suggests the idea. His class look at wUls for charity, as thief-takers 
 do at poor men, with a kind of political and morbid suspicion, which would 
 be ludicrous, if his language were not so reckless. It makes one indignant 
 to find men permitted to broach their careless slanders, with flippant fluency, 
 before a Committee of the House of Commons. 
 
 * Just what the act of George II prevents as to land. 
 
 + Evidently too far gone to understand. 
 
 X Now what is observable is, the utter absence of any indication of in- 
 dignation on the part of this solicitor, so scrupulous and suspicious when 
 bequests for charity are- concerned. Doubtless he thought the conduct of 
 the nephew exceedingly shrewd, sagacious, and sensible ; and chuckled at 
 his success. But if the case had been reversed, and the property by the first 
 deed had been left to the relatives, and the priests had persuaded her to 
 revoke in their favour at the last hour, what would have been said 1 How 
 illustrative is this of the hypocrisy of the horror so shamelessly professed 
 about influence used for the purpose of procuring bequests for pious uses. 
 It is clear that, as the whole history of the subject shows, the tendency of 
 Protestantism is to make people use their influence with testators only for 
 themselves. 
 
 § This was on the Monday. A whole week intervened between this and 
 the death. Is not this as good as a month, or a year ( 
 
218 APPENDIX. 
 
 disposition he wished to make of his property. He then, without hesi- 
 tation, freely, and in the tone of a man who was acting on his own 
 judgment, stated that he meant to leave £7,000 stock for the benefit 
 of the girls' Roman Catholic school attached to the chapel, and £3,000 
 stock to his relatives. I advised a: deed as to the former, and men- 
 tioned particularly the clauses I should suggest. He was in his perfect 
 senses, and fully comprehended everything.* He died on the Satur- 
 day following. The deed transferred the £7,000 stock to his iiame, 
 with mine as co-trustee for the school after his death. I took away 
 the deed as trustee, with M. Carre's assent. It is the common prac- 
 tice to do so. There was a power of revocation, and he could have 
 revoked by sending to me for it — ten minutes' walk from his residence. 
 If he had desired it, I should have at once re-transferred the stock. I 
 had a position in the world, and should of course have regard to that. 
 In fairness', the document should have been in possession of the person 
 who had to act upon it at his death. The medical man called upon him 
 every day ; and if he had desired it, could have sent to me through 
 him. On Saturday morning I heard Carre was alive : I saw the land- 
 lord, and told him if M. Carre desired to make any, alteration, to send 
 for me, I went to the Bank that day, to execute the transfer of the 
 stock into the names of the trustees. The transfer was efiected before 
 half-past one. On reaching home I called on M. Carrfe, and found he 
 had died about four o'clock. After the death, the dividends were ap- 
 plied to the support of the school until the suit was instituted. I am 
 satisfied the testator intended to make the disposition ;f that he con- 
 sented to the deed ; and that the transfer was executed before death : 
 and I see nothing improper in the transaction. J I considered it evident 
 that he was in a disposing state of mind. ^ 
 
 As to Mrs. Tucker's will, she said no one should make it but me 
 (she had a distrust of attorneys) ; and her own solicitor said she was 
 in very good hands. The instructions given to me by Mrs. Tucker as 
 to the way in which Dr. Magee, her residuary legatee, was to apply 
 the residue of her estate, I decline to state ; having been given con- 
 fidentially, and not having been testamentary, they could not be proved 
 as such; they did not recognize a trust; they were only recommend- 
 atory. The property was given absolutely for his own use. As to the 
 
 * Here is the whole case. What pretence could there be for impeaching 
 it? None, that was not prompted by intense hatred of religion, and a 
 morbid sugpicion of Catholicism. > 
 
 t Who can doubt it 1 
 
 t Nor any one else, except those who hate bequests for pious purposes. 
 
 § What more could be required ? 
 
APPENDIX. 219 
 
 purely personal estate, if the paper had formed part of the will, they 
 would have been valid trusts. Part of the property was leasehold, 
 however ; and if a charitable disposition had been made of it, it would 
 have failed under the statute of mortmain : and, knowing that she had 
 entire confidence in Dr. Magee, that he would do what she wished 
 with the money, she made these recommendations by private instruc- 
 tions ; and they were not inserted in the will, expressly by her own 
 direction. The intention of the testatrix was to prevent litigation, and 
 to leave it in the absolute discretion of an individual to dispose of a 
 fimd, not to make it a trust. 
 
 The LoKD Ppovost op Edinbtjbgh. — There are in Edinburgh 
 some large charitable institutions. The first and most extensive is 
 Heriot's Hospital, founded in the reign of James I, and richly en- 
 dowed, having a revenue of £16,000 a-year, for the maintenance of 
 boys.* It contains one hundred and eighty, who receive board, cloth- 
 ing, and education. This is the wealthiest and most ancient. Then 
 there is Watson's Hospital, for a similar purpose. There is Donald- 
 son's, and Chamber's, and Stewai-fs. Donaldson left £21,000 for the 
 hospital, which has been built at that cost, out of the interest. There 
 are many others. Heriot was a benevolent man, and provided for all 
 his relatives :\ but where proper provision was not made for them, as 
 in the case of Donaldson, who neglected his own relatives for the sake 
 of this hospital, parliament should see that proper provision is made. 
 These institutions were zM founded since the Reformation,^ and gene- 
 rally arose from personal vanity ; to have the founders' names handed 
 down. These funds all arose from land ;% and the increase in the 
 value of the foundations has been derived chiefly from an iterease in 
 the value of the land. 
 
 The Right Hon. T. B. C. Smith, Master of the Rolls in Ireland.— 
 The old statutes of mortmain were introduced into Ireland by Poyn- 
 ing's act, in the reign of Henry VII. The 9th of George II was never 
 introduced into that country ; and the only enactment in force in that 
 coimtry in any way corresponding with it, is the sixteenth clause of 
 the Charitable Bequests Act, passed in 1444, which provides that no 
 donation, devise, or bequest in Ireland, shall be valid for charitable or 
 pious uses, unless the deed or will be executed within three months 
 
 * This evidence is interesting, as showing what magnificent foundations 
 exist in a country where there is no law like that of George II. 
 
 t These times were stUl half Catholic. 
 
 X It has been already shewn that neglect of relations, and death-bed 
 bequests for charity, arose under Protestantism. 
 
 § Compare this with the evidence of Sir F. Palgrave, as to the eligibility 
 of land as an investment for charity. 
 
320 APPENDIX. 
 
 before the death of the person executing the same, and unless the in- 
 strument, if not a will, shall be duly registered within three months 
 after the execution thereof. As to charitable uses themselves, the law- 
 was much the same in both countries. But as to superstitious uses, 
 the statute of Henry VII did not extend to Ireland. The legality of 
 bequests for masses has been decided by Lord Manners, and by the 
 present Lord Chancellor of Ireland. At the common law, bequests for 
 masses were lawful in both countries. It is laid down by Littleton, 
 that they who held in frankalmoigne were bound to say masses for the 
 souls of their founders.* There are several grants in England and 
 Ireland, in which that particular duty was imposed ; and I believe a 
 part of the property held by the dean of St. Patrick or Christ Church, 
 was granted on condition of saying masses for the soul of the founder, 
 the then King of England. In England it was rendered illegal (at 
 least. Lord Cottenham thought so) by the statute of Edward VI. As 
 to the law of mortmain, I cannot recal any case in which abuse has 
 arisen from the absence of such a law in Ireland. The Roman Ca- 
 tholics would object to it. 
 
 The Protestaint Aeohbishop op Dublin. — It is my opinion that 
 we should scrupulously guard against the danger (which is consider- 
 able) of people almost in articulo mortis making very rash bequests, 
 and leaving their natural heirs ill provided for, sometimes not provided 
 for at. all; and if any provision could be made that would not interfere 
 with a sober, deliberate, and well-advised bequest, I do think that 
 would be very desirable. Complaints have been brought before me 
 privately, and in which I found that I couM not interfere at all, and it 
 seemed to me a grievous hardship, in cases resembling those collected 
 for this Committee by my registrar. No cases have come to my 
 knowledge, except those connected with the Roman Catholic religion ; 
 and that might naturally be calculated upon, from the circumstance of 
 their being so predominant in point of numbers. I am far from saying 
 that equally objectionable ones might not take place in other commu- 
 nities. I think from those cases which have been brought before me, 
 and some similar which have been collected by my registrar, that 
 further restriction would be desirable. 
 
 C. Wale, Esq. (Protestant) barrister. — I am son-in-law of the 
 Archbishop of Dublin. My attention was directed, when in Dublin, 
 to the subject of the law as to charity. I went to the Registrar of the 
 Consistory Courts, and looked through a number of wills with his 
 assistance,! confining myself strictly to those cases in which the death 
 
 * See ante, p. 28. t Only CatholiQ wills, it turns out. 
 
APPENDIX. 231 
 
 of the testator took place immediately after the making of the will.* 
 The first case was Marcella Ayres. The date of the will is 5 Sept. 
 1844 ; and the date of the death the same day. The property is sworn 
 under £4,000. The executor was the Rev. W. Yore, a Roman Ca- 
 tholic priest. £800 is given to charitahle institutions ; £500 is given 
 to the Rev. W. Yore : and £300 to other persons. I do not know if 
 there were any relatives of the testatrix living.^ The next case is the 
 will of Ann Halpen. The executor was the Rev. R. O'Hanlon ; date 
 of will April 1, 1848; date of death April 15, 1848; property sworn 
 under £450. There are three charitabIS bequests, and £50 for masses; 
 a legacy of £100 to Mr. O'Hanlon ; and one of £100 to another per- 
 son (a lajTuan) ; and two smaller legacies to other parties. The resi- 
 due, £300, to Mr. O'Hanlon in trust for a niece,J £100 of which was 
 to be paid for apprenticeship, and £200 on her coming of age or mar- 
 rying with his assent ;§ but in the event of her dying under age, or 
 marrying without his consent, || the money was to go to the residue, 
 which was bequeathed to him ! I made no inquiries with reference to 
 the relationship of the other legatees, and can furnish no information 
 as to whether the testatrix had any relations living.^ Then there is the 
 case of Elizabeth Smith : date of will 7th August, 1849 ; date of death 
 next day : executor the Rev. J. Kavanagh ; and the property sworn 
 under £2,000. The bequests were, two to clergymen, three to laymen, 
 and the residue (about £1,800) to the executor, for "charitable pur- 
 poses", not stating what. Only £120 went to any person who could 
 be a relative.** The wills to which I have referred were entirely those 
 of Roman Catholics. I made no further inquiries, hey and the particu- 
 lars I have communicated. W I wished only to have all wills which ap- 
 peared upon the face of themJJ to have been made under suspicious 
 circumstances. 
 
 * Why so 1 Plainly to produce prejudice. 
 
 t Then what was the case worth ? 
 
 i Her only relative : a young girl, whom she was anxious to leave under 
 the care of an aged priest. 
 
 § That is, within age. His assent was not required after she attained her 
 majority. The witness took care not to mention that ! 
 
 II Underage. Was it fair to suppress this ? 
 
 IT Was it not audacious in a man to come forward with these cases, after 
 having shut his eyes designedly to the only facts which could at all make 
 them useful or material ? 
 
 ** He did not know nor care whether she had any relatives living. 
 
 +t Of course not. Heonly sought for what would suit his purpose. Perhaps 
 a more flagrant specimen of getting up was never presented. And what an 
 exposure ensued when the party so cruelly misrepresented by this candid 
 and impartial Mr. Wale came forward to explain the cases. 
 
 XX Taking no care to find if on the facts these circumstances were ex- 
 plained. Was it not unjust to publish such exfarte evidence ? 
 
222 APPENDIX. 
 
 Rev. J. Katanagh, Roman Catholic curate of Kingstown, Dublin. 
 — I have read the evidence of Mr. Wale, vsrhich refers to the will of 
 Ehzabeth Smith; on the 7th August (date of will) I was sent for from 
 Mrs. Smith, who was dying of cholera: I went immediately. Her only 
 son had just died of cholera : he was her only relation. A clergyman 
 present wrote her will at her request. He did so because there was no 
 one else to do it. There were only two other persons (women) present. 
 There is in the diocese a statute restraining clergymen from writing 
 wills if any else are capable of doing it: — "Sub nulla prcetextu testa- 
 m,entum scribat sacerdos, si alius ad id satis periius inveniri poterit." 
 The testatrix was in perfectly sound mind. Three years have elapsed, 
 and no one has come forward to claim, relationship with her. 
 
 "With respect to Marcella Ayres, she had no relation or friend, and 
 Dr. Yore acted as her guardian. The money she left by her will was 
 invested by her while Dr. Yore was away, in his name and in her own, 
 and so it continued till her death. So that, if he had not got a will made 
 before she died, he woiild have become absolutely entitled to the whole 
 of her property. And the effect of the will was to deprive him of the 
 right he would otherwise have had to it; she wished it to go to him 
 during his life absolutely, for his own use, and he did not wish to de- 
 prive her of the happiness of giving it to charitable uses while she 
 lived, and suggested the will with that view.* 
 
 The Rev. R. O'Hanlon, Roman Catholic clergyman of Dublin. — As 
 to the will of Anne Halpen, the lady pressed me to become her execu- 
 tor, and act as guardian to an orphan niece. The will was made by a 
 solicitor, Mr. Sinnott, who is present. 
 
 Mr. Sinnott, solicitor, Dublin. — I drew the will of Ann Halpen 
 from her own instructions ; and I saw it executed. The clause in the 
 will as to Mr. O'Hanlon's control over the niece, was inserted, without 
 his knowledge, by her direction. The object was that the niece, being 
 an orphan, might be protected. 
 
 James Vincent Haeting, Esq., solicitor. — I come in consequence 
 of a request made to Cardinal Wiseman that he would name some 
 person of whom information might be obtained.f I have acted as his 
 solicitor some years. There could have been no enrolment of deeds 
 relating to land, applied for purposes of the Roman Catholic Church, 
 till within the last few years, because it would only have been a means 
 of recording a forfeiture; and for some time after the act of 1832, the 
 
 * Here is the "rapacity of a Popish priest": getting a will made to divest 
 and deprive himself of property ! 
 
 t See aTite,. p. 147. A great part of his examination related to the ad- 
 ministration of trust property, -which, being utterly irrelevant, is omitted. 
 
APPENDIX. 223 
 
 construction was doubtful, so that parties would not venture to do that 
 which would expose them to risk and danger.: as regards the past, it 
 was still impossible to enrol; as respects ^^ future, where land has 
 been acquired for a specific intention, and the trust could be declared, 
 the deed has been enrolled. Before the year 1832, all land given in 
 trust for the Roman Catholic chapels, was liable to forfeiture. And 
 the act of William IV made the grant of land upon trust for Roman 
 Catholic chapels valid, supposing the requisites of the 9th George II 
 are complied with. But it would be liable to forfeiture still, if it came 
 within the definition of "superstitious uses". If a suit were instituted 
 against a person as to the application of trust property under these 
 circumstances, he might conscientiously set up the possibility of for- 
 feiture under the act of George II or the statute of superstitious uses 
 as a reason for not answering interrogatories, or making discoveries in 
 chancery. On a devise in absolute terms to the bishop of a district, I 
 should consider, that he could take it, so far as the property was con- 
 cerned, absolutely ; but that he would consider it in this way, that the 
 testator had devised it to him as bishop, upon the supposition that the 
 uses to which it would be applied would be Roman Catholic or cha- 
 ritable. I do not mean strictly charitable purposes; but that it would 
 not be for himself only. There could be no legal obligation upon 
 him to do so, but he would feel a moral obligation to use it for the 
 advancement of the Catholic Church. No property has ever been left 
 so to Cardinal Wiseman. He has the administration of property left 
 to his predecessors. f I do not know the amount, I only can know 
 with his permission: my means of knowledge are not so great. J I 
 could not communicate what I know, as I only obtain the information 
 in my professional capacity. I decline to give the Committee such 
 information; and, if I were the Cardinal, I should decline to answer 
 such a question. I refuse on the ground of professional confidence, 
 and also on other grounds. 
 
 The Cakdinal Archbishop oi" Westminstee. — Property given 
 for charitable purposes is, I think, entitled to the same protection as 
 property given to a stranger. Persons sometimes pass over their 
 children and give a portion of their property to strangers; that is not 
 
 * The Committee had nothing to do with the administration of charitable 
 property, but only its acquisition; and therefore had no right to ask any 
 questions as to its application. 
 
 t The object of obtaining these answers was, to get an excuse for calling 
 the cardinal ; but the previous note shows there was no just pretext for so 
 doing, seeing that the questions related only to the administration of trust 
 property. 
 
234 APPENDIX. 
 
 considered to require any legislative interference. I do not think yofl 
 reqxiire any greater protection against bequests made to charity than 
 against bequests made to persons who may exercise an undue influ- 
 ence in their own favour, which is more probable than that undue in- 
 fluence should be exercised in favour of a charity. I wish to add, that 
 in all reasoning on this matter, the influence of a clergyman in favour 
 of a charity — say of a school— is spoken of as if used in his own 
 favour and self-interested. Yet he, personally, gains nothing him- 
 self. And I cannot comprehend the horror entertained of a priest using 
 any influence in favour of the poor, while so little is expressed about an 
 individual's exercising it for himself and his own family. In the pre- 
 sent age, I do not see any necessity for any restriction of gifts_,for re- 
 ligious or charitable purposes. As far as I can judge, / thitih the ten- 
 dency of persons, in our times, is much more to take away from religious 
 and charitable objects than to give to them; and I do not think, that 
 a disposition, which requires encouragement, should be put under re- 
 strictions tending to prevent the performance of the duty of charity. 
 I think any legal restrictions deserved consideration whether they 
 ought not to be altered. I do not say, but that a necessity m,ay arise 
 for a provision to prevent the accumulation of land. I see the possi- 
 bility of abuses arising from large quantities of land accumulating in 
 particular hands; though I do not conceive, that that was the object 
 of the original laws of mortmain. I suppose it is now admitted-, on all 
 hands, that it was more the loss of rights that arose from land to feu- 
 dal services, than any real anxiety about preventing the accumulation 
 of land in particular hands, which led to those laws. But I say, there 
 may be difiiculties about the accumulation of large properties in par- 
 ticular hands. I know that there are persons, of high character as 
 financial scholars, who think differently, but I say that may be con- 
 sideration. Stm, I can hardly conceive that the restraints of the last 
 century upon the subject, are very necessary at the present time. The 
 existing laws of mortmain tend to restrain endowments for very im- 
 portant religious purposes, more than is called for from the real cir- 
 cumstances of society. I think the present state of the law has had 
 the effect, in past times, of preventing declarations of trusts, and has 
 led to far the greatest part of Catholic property being left without any 
 trust whatever, it being settled as the absolute propertyof the holders. 
 The mortmain laws have acted together with the particular laws 
 affecting Catholic property. There should be an abolition of the law 
 of superstitious uses; and a good title should be given, upon proof of 
 application, for a certain number of years. 
 
 I do not think that any limit need be placed to the power of be- 
 
APPENDIX. 325 
 
 queathing property to religious purposes. Whatever need there may 
 have been in past ages, I do not think there is any need at the present 
 moment of any restriction on doing charity. I do not see why it 
 should not be left in the same way as other dispositions. I should 
 say there is no need for putting a restriction or limitation upon it. I 
 believe, that where a person has committed injustice in this life, he is 
 bound on his death-bed to repair that injustice to the best of his 
 power; and the Catholic doctrine of restitution does not give a hope 
 of pardon to a person who does not endeavour to make up for his past 
 injustice if he can do so; therefore, if such a person is dying, and he 
 has property, and his family is not injured by it, it is not undue influ- 
 ence on the part of the priest to tell him, that he must endeavour to 
 make up in some way for past injustice. And again, if a person hasj 
 through the whole of his life, disregarded the duty of charity and 
 giving alms in proportion to his means, I think he is bound lo make 
 \ip for that neglect of a serious Christian duty when he comes to die; 
 and in that case it would not be undue influence on the part of the 
 priest to advise him to leave what was a proper proportion of his pro- 
 perty for charitable purposes. Every ecclesiastical writer, and every 
 one who gives instructions to priests as to their conduct, will tell them 
 not to use undue influence, and to see that nobody exercises undue 
 influence. There are provisions enough in that way, and so I should 
 direct any priest who should apply to me for instructions. And I cer- 
 tainly should not accept a legacy in any case in which I thought that 
 undue influence had been used with a person on his death-bed. In 
 regard to my own community, I have no hesitation in saying, that there 
 is no reason to guard against undue influence being exercised over 
 persons on their death-beds. 
 
 If measures were taken to secure ecclesiastical property in every 
 way, I would rather have trusts declared, i. e. if there were no risks in 
 law. But I do not know any impropriety in the trust being kept se- 
 cret. I do not see any impropriety in complying with the testator's 
 will. Besides, in every case of secret trusts there is sufficient power 
 existing to force disclosure of the trusts. If there he no trusts, there 
 is nothing for the law to deal with. 1 do not think the parties to whom 
 the property will come in the event of the gift being void, have a 
 right to see whether they are defrauded. A right does not consist in 
 the possible power of making a claim. A right must exist; otherwise 
 any one may be expected to show the deeds of his property, that others 
 may discover any contingent grounds of claim against it. If any one 
 is " defrauded" by the act, it cannot be right; but I suppose a case in 
 which no one is defrauded; and I do not see any necessity for making 
 known the disposition. 
 
 Q 
 
2.26 APPENDIX. 
 
 The very Rev. Db. Hogarth. — The ecclesiastical trustees of the 
 Roman Catholic charities claim a right of independent management of 
 them, without accounting to any temporal authority upon earth. But 
 if we were convinced that the laws were equitable, and we were also sa- 
 tisfied with the spirit in which they were administered, we should not 
 object to the cognizance of questions arising out of the temporal admi- 
 nistration of the charities being submitted to the temporal courts. The 
 trustees would conscientiously administer what has been put into their 
 hands with a certainty that they would do so ; and would be fully as 
 much bound to administer the property justly from these higher mo- 
 tives as from inferior ones. With respect to what is in trust — a breach 
 of trust might properly be submitted to the Court of Chancery; but 
 the greater proportion of these things are not in trust: I would as soon 
 leave the settlement of such questions to the bishop as to a secular 
 court: / could place the same conjldence in a spiritual administration as 
 I could in a temporal one, to say the least of it. In almost all the trials 
 regarding property, we have had a great deal of diflBculty in carrying 
 them through, so as to accord with the intentions of the parties who 
 have given the property. I should object to the administration of the 
 temporalities by the courts of the country; but to rectifying anything 
 that was improper in the administration I should not object. Sup- 
 posing property were left to me, without any conditions, by a person 
 who was confident I should administer it so as to do good with it, 
 nobody would have a right to make inquiries into my manner of ad- 
 ministering it. Thus, a person once left the whole residue of his pro- 
 perty to me without any let or hindrance whatever, and I disposed of 
 every farthing of it for charitable purposes; has any man on earth any 
 right to ask me about such property as that? In another case, a per- 
 son left me, without leaving me any directions whatever, £3,000; every 
 farthing of it has gone to the same purposes, because I knew that the 
 individual was in the habit of spending it throughout life in charitable 
 purposes. I think that is the way in which Catholic priests in general 
 administer the property; and I should like to knqw why there should 
 be any mistrust in them? There may be individuals who would not 
 act in that way, but why should there be any mistrust in regard to 
 them any more than other individuals ? Supposing that the residue of 
 the property in such cases was not exhausted by myself, but a portion 
 of it transmitted by me, by reason of my demise, I should have left it 
 in the same way as it was left to me; having first ascertained that the 
 individual was above all suspicion with regard to these things. If I 
 found an individual in whom I could place confidence, I would as soon 
 do that as place it in the hands of the law. Many persons have more 
 
APPENDIX. 227 
 
 confidence in the clergyman or bishop, whoever it may be, to whom 
 they entrust a sum of money, that he will dispose of it rightly, than 
 they would have in the Queen's courts. They have a greater distrust 
 of the courts carrying their wishes into effect, than they have of those 
 clergymen in whose hands they leave their property. 
 
 Rev. F. Tkappes, Roman Catholic priest (examined before the 
 Committee of 1844), — It is not according to the discipline of the Ro- 
 man Catholic Church, that dying men should be solicited for bequests 
 to charitable uses. In the 22nd session of the Covmcil of Trent there 
 is a decree on the subject, against "impor tunas atque ilUberales eleemo- 
 synarum exactiones pro missis novis celebrandis."* It was prohibited 
 in the early canons, that ecclesiastics should be executors of wills; or 
 employed in afiairs of that kind.f 
 
 Rev. F. S. Mahonet, Roman Catholicpriest. — In Liguori, the pre- 
 sent recognized work at Rome, it is asked, whether a will is valid 
 which wants the forms required by the court law? the answer is, " If 
 the will is made to pious uses, even in the public court they are not 
 required,! ^^^ ^^ ^° ^^^ court of conscience, the power of the disposer 
 being granted, a writing, nod, or other sign of the testator, without 
 any witness, is sufficient; and although, death intervening, the will 
 should not have been perfected, it is valid for the pious uses expressed 
 in it".§ It can easily be understood to what extent property must 
 have passed to pious uses.|| 
 
 * Cum igitur multa jam sive temporum vitio sive hominum iucuria et im- 
 probitate inepsisse videantur, quse a tanti sacrificii dignitate aliena sunt : ut ei 
 debitus honor et cultus ad Dei gloriam et fidelis populi sedificationem resti- 
 tuatur, decemit sancta synodus ut ordinarii locorum episcopi ea omnia pro- 
 hibere, atque e medio tollere sedulo current ac teneatur quas vel avaritia 
 idolorum servitus vel irreverentia quse ab impietate vix sejuucta esse 
 potest vel superstitio verse pietatis falsa imitatrix induxit : atque ut multa 
 pauces comprehandantur in primis quod ad avaritiam pertinet, cujusvis 
 generis mercedem conditiones pacta, et quidquid pro missis novis celebrandis 
 datur, nee non importunas atque illiberales eleemosynorum exactiones 
 potius quam postulationes aliaque hujus modi qu£e a simoniaca labe vel 
 certe a turpi qusestu non longe abauut omnino prohibeant." Decree to be 
 observed in celebrating masses, and avoiding abuses in the same, session 22. 
 
 + So it is in France and other Catholic countries : so it is even in Ireland 
 (see evidence of Mr. Kavanagh), where there is no law of superstitious uses, 
 as there is in England. It is this law which in a manner necessitates that, 
 for the sake of secret trusts, priests should be concerned in wills, apparently 
 for their personal benefit. 
 
 X Just as it was enacted in the act of Elizabeth by a Protestant parlia- 
 ment, ante, p. 47. Were the Committee ignorant of this, or affect ignorance 1 
 
 § Precisely what was held by Lord Bacon under that act. A devise void 
 at common law, was decided by him to be good for charitable uses. See 
 Duke on Charitable Uses, and ante, p. 5.3. 
 
 II Not more than under the act of Elizabeth in England. See ante, p. 
 48. This is really the whole of this person's evidence that was not imperr 
 
 Q 2 
 
228 APPENDIX. 
 
 Rt. Rev. Dr. Grant,* the bishop of Southwark. — The account 
 above given is not complete, and consequently not correct. The parti- 
 cular passage in question is partly his own text, and partly a comment 
 on the author whose text he quotes. He discusses first, the general 
 question (always a diificult question amongst lawyers), whether a wil^ 
 without the forms and technicalities required by law is binding on the 
 heir or not — that is in conscience. He then discusses the particular 
 question, " Is he so bound, whether it be for religious purposes, or 
 whether it be for general purposes ?" He says, " There is. a text in 
 the civil law which seems to say, that when the will of the testator is 
 perfectly clear on a subject, the heir-at-law is bound to respect it". 
 Then the text of the civil law is thus quoted by the Saint from the In- 
 stitutes, " Nihil est tarn conveniens naturali tequitate quam voluntatem 
 Domini volentes rem suam malium transferri ratem haberi." And then 
 he says, " Upon this many writers held, that you are bound in con- 
 science to act according to the real will, although it be not the legal 
 will of the testator". Then he says, " Supposing this be for religious 
 purposes, is the heir bound to respect it, if it be only communicated in 
 an imperfect way; for instance, by a nod, a bow, or a sign?" He says, 
 " So long as the heir-at-law thinks this is the case, he is bound to re- 
 spect it; but he is not bound to believe one witness, even though an 
 approved one, and even though he be the parish priest, unless there 
 be some witness adding to the value of his evidence". And the argu- 
 ments go upon the doctrine of Scripture, that the truth is in two or 
 three witnesses; and then St. Alphonsus says, "that they are required, 
 by Divine law, and that no case is complete without them; seven wit- 
 nesses are required by the law of Rome, in some cases, in support of a 
 will. Supposing that prbperty be left to a person by a will duly 
 attested by seven witnesses, and the testator wrote to the person to 
 whom it is left, to say, that he intends him to use it for certain specified 
 purposes mentioned in the letter, the court would act upon it, if satis- 
 fied that the letter had as much value as the evidence of two witnesses. 
 The texts of the civil law lay it down, that, for religious purposes, 
 there is always to be a facilitation ; and, as long as the court had as 
 
 tinent and irrelevant, and something more ; for it was mere scandalous gos- 
 sip about all sorts of topics. 
 
 * Most of the prelate's evidence was irrelevant, because in answer to Mr. 
 Mahony's irrelevant imputations on the management of Roman charities : as 
 if the subject of inquiry had been the administration of charitable funds, 
 instead of their acquisition. That part of the right rev. prelate's evidence 
 which is quoted is very interesting, as showing how the act of Elizabeth was 
 conformable to the principles of the unchangeable Catholic theology, only 
 then beginning to die out in the land. 
 
APPENDIX. 329 
 
 much, evidence as would justify it in pronouncing the fact, they could 
 act upon it. It would require less than seven witnesses to transfer the 
 property from the person taking it to a charity — still sufficient to make 
 legal proof to the court that the testator meant it. If it were in the 
 handwriting of the testator, I do not know that the court would neces- 
 sarily act upon it. I remember a case in which they did not. I be- 
 lieve the law on the Continent is, that the family have a right to some 
 portion, more or less, of all the real property that was enjoyed by the 
 testator.* In England, a man with several children might, on his 
 death-bed, leave the whole of his property to a prostitute ; while, on 
 the Continent, he would be obliged to leave the greater portion of his 
 property (whatever will he made) to his children. St. Alphonsus, 
 writing on the duty of priests in attending to the dying, says, " When 
 the illness advances, it is the duty of the priest to exhort the sick man 
 to make a good disposition with regard to his property, for this is 
 proper for the peace of his family; and still more so, if there should 
 be anything wanting for the quiet of his conscience, but in this the 
 priest must take the greatest care that he does not himself fall into 
 suspicion of avarice. If the sick man have brothers or sisters who are 
 in want, he must tell him, that he is hound under grievous sin to give 
 them his property, at least so far as is necessary to relieve their wants." 
 " But there is not the same grievous obligation with regard to more 
 distant relatives. Let the priest take care never to advise what may be 
 injurious to others." ■ The clergy are never allowed to take part in the 
 making of wills, unless where any other bystander would be expected 
 in common charity to draw a will in the absence of a solicitor. 
 
 REPORT. 
 
 The Select Committee appointed to consider the policy of extending the 
 Law of Mortmain, so as to include Personal Estate, and generally whe- 
 ther any alteration should be made in the law as it affects Testamentary 
 or other Dispositions in favour of Religious, Charitable, or Permanent 
 Objects, who were empowered to report their Observations, together 
 with the Minutes of Evidence taken before them, have considered the 
 matters to them referred, and have agreed to the following Report : — 
 " Your Committee have, in the last and present sessions of Parliament, 
 examined several witnesses of different positions in life, and belonging to 
 various religious communities, with the view of obtaining full information 
 concerning the subject of inquiry referred to them for investigation. Your 
 
 * This used to be the law in England (see ante, p. 54) ; and it is emi- 
 nently Catholic. It applied to all cases. Now, on the contrary, relatives 
 are not protected in this country at all, except against charity. 
 
230 APPENDIX. 
 
 Committee have also had before them a Report made in the year 1844, on 
 the same subject, by a Select Committee of the House of Commons, together 
 with the evidence that was taken upon that occasion. It will be found on 
 reference to that Report that not only were the origin and progress of the 
 Law of Mortmain in England explained at that time by witnesses of great 
 learning and ability, but that also the law on this and kindred subjects in 
 other parts of the empire, and in many foreign countries, was submitted to 
 a careful and elaborate inquiry. 
 
 " Before making any suggestion for a specific alteration of the law, or 
 answering the particular question referred to your Committee, namely, 
 whether it be expedient that the Law of Mortmain should be extended so 
 that it should include personal estate, it will be convenient to state what are 
 the material provisions now existing upon the subject. With this object, 
 and to render the past legislation intelligible, attention must first be di- 
 rected -to the distinction which exists between the word " Mortmain" in its 
 original and technical meaning, and the same word in its modern and 
 popular acceptation. The strict meaning of the word " Mortmain" is the 
 conveyajice of lands to a corporation having a perpetual succession and ex- 
 istence. The popular meaning of the word is the vesting of land or other 
 property either in a corporation or in individuals, in such a form as that the 
 produce or beneficial interest becomes permanently applicable to religious 
 or charitable objects. 
 
 " When land is conveyed to a corporation it ceases to be subject to the 
 ordinary laws of devise and descent, because the corporation, the legal owner, 
 is an undying body, intended in its original constitution to last for ever. 
 Thus the lands of such religious houses as existed in former times, of a 
 municipal corporation, or of an incorporated railway company, continue in 
 the same legal ownership without devolution from individual to individual.* 
 This is the original application of the word " Mortmain". 
 
 " Where, however, lands are given to individual trustees, to be held by 
 them upon charitable or religious uses, the legal ownership is subject to con- 
 tinued change, either when new trustees are appointed and the land is con- 
 veyed to them, or when by the deaths of trustees it descends upon their heirs 
 or survives to their co-trustees. In gifts of this nature a court of equity 
 fixes upon the produce or beneficial interest of the lands, and compels the 
 legal owners, whosoever they may be, to apply it to the religious or charitable 
 purposes to which it was devoted, so that in these cases, not strictly of mort- 
 main, but of mortmain in its popular signification, the objects to which the 
 land is applied remain fixed and unchangeable, though the legal holders are 
 subject to alteration.f This distinction between the original and the pre- 
 sent meaning of the word " Mortmain" may appear to be in some respects 
 rather one of form than of substance, but it will be found to enter materially 
 into the law of the subject, and to be necessary for a correct understanding 
 of the statutes now in force. 
 
 " The ancient statutes which prohibit the alienation of land to corpora- 
 tions, are separate and distinct from the more modern Acts which apply to 
 the vesting of land in trustees for charitable purposes, and it will be conve- 
 irient first to consider the law arising under the former class of Acts before 
 proceeding to the more important questions which arise under the modem 
 statutes. 
 
 " In the early periods of the history of the country the practice of giving 
 
 * But the land might be alienated at pleasure. See Essay, p. 36. 
 
 t By the old mortmain law the object might be permanent and perpetual ; 
 the scope of the law only applied to the perpetuity and permanence of the 
 persons or bodies politic by whom the property was held, corporations having 
 perpetual succession. 
 
APPENDIX. 231 
 
 land to trustees was not known,* and the only mode by which at that time 
 the produce of laud could be made permanently applicable, to a perpetual 
 charitable or religious object was, by vesting the land in a religious house 
 or other corporate body. To prevent the practice of giving lands to religious 
 houses or other corporate bodies, there are a series of statutes, commencing 
 with Magna Charta, and continuing down to the time of the Reformation, 
 either prohibiting or placing various restrictions upon such alienatious in 
 mortmain. These statutes are many of them quite obsolete, and it is not 
 now necessary to refer to them further than to say, that their general effect 
 is that land cannot be vested in a corporation, except by licence from the 
 Crown, or under the power of the particular Act by which the corporation 
 is created. By the 7 and 8 Will. Ill, c. 33, the Crown possesses a general 
 power to confer licences upon corporations to hold lands in mortmain. 
 Moreover, in Acts of Parliament passed for the purpose of creating corpora- 
 tions either for trade or for any great work, such as railroads, docks, canals, 
 and a variety of other purposes, it is the practice to permit a certain limited 
 quantity of land to be held in mortmain. 
 
 "With reference to those statutes which prohibit or place restrictions 
 upon the vesting of land in corporate bodies, some points of practical im- 
 portance have been brought before the notice of your Committee, wherein 
 an improvement of the law might be effected. It is expedient to dispose of 
 these in the first instance. On this point, your Committee would refer to 
 the evidence of Mr. Barber, the secretary to the Chancery Commission, which 
 will be found at page 336. It appears from his statement that there are 
 two defects in the law for which a remedy ought to be provided. 
 
 " In the first place, it is doubtful whether suoh trading bodies as happen 
 to be incorporated can take any valid security upon land unless they are ex- 
 pressly empowered so to do by Act of Parliament. For instance, in a case 
 that occurred in practice, doubts were entertained whether a Scotch corpo- 
 ration could advance money upon the security of railway mortgages, and 
 other property of that description. The doubt arose under the statute 15 
 Rich. II, c. 6, which is one of the old statutes that prohibited alienations in 
 mortmain according to the strict meaning of the word. There does not ap- 
 pear to be any necessity for such a restriction upon trading corporations, 
 and your Committee are of opinion that the law should be made clear upon 
 this subject. The other defect in the law on this head, pointed out in Mr. 
 Barber's evidence, concerning which there is no doubt, is more important. 
 It is this. Trading corporations, when they have legally advanced money 
 upon land, are unable to realize their security by foreclosure, or otherwise 
 acquiring possession of the land itself, without danger of immediate absolute 
 forfeiture to the Crown. A case of this kind occurred some years ago, which 
 may be mentioned as an instance of the evil. The University Assurance 
 Society was incorporated by letters patent on the 28th June, 7 Geo. IV, with 
 power to hold lands not exceeding the value of ^1,000 a-year. The corpo- 
 ration, having lent money on mortgage of lands exceeding that sum in value, 
 and having received an intimation that they had thereby exceeded their 
 powers, themselves brought their case before the law officers of the Crown, 
 and thereupon a commission was issued to five barristers, for the purpose of 
 inquiring into the subject. An inquisition was taken under that commission, 
 and it was found that the corporation had exceeded then- power, and taken 
 on mortgage lands of a much greater value than £1,000 a-year. The lands 
 were declared forfeited, and passed into the hands of the Crown. An Act of 
 Parliament was subsequently obtained, by which the mortgages were con- 
 
 * This is incorrect. See the Essay, ante, p. 30. Before the act of 
 George II, no law prevented the alienation of lands to persons unincor- 
 porated, in trust for religious purposes. 
 
233 APPENDIX. 
 
 flrmed, and the corporation allowed to lend money on mortgage, with a restric- 
 tion, however, that if they came into possession as mortgagees, the land should 
 be sold and the money realized within a certain period. It appears from 
 Mr. Barber's evidence, that a similar privilege has been specially conferred 
 by Act of Parliament in other cases, and that the period of five years has 
 been taken as the time during which a corporation should have the power of 
 selling land acquired by them in any suit for foreclosure or other proceeding 
 for the enforcement of a security for money. 
 
 " Your Committee are of opinion that privileges of this description should 
 be made general, and should not be confined to particular trading corpora- 
 tions. They therefore think that the statute 15 Rich II, c. 5, should be 
 repealed, and its material provisions re-enacted with reference to modern 
 times, in such form as that, first, corporations should without doubt be able 
 to advance money on the security of real estates ; secondly, that they should 
 be compelled to sell or dispose of land coming into their actual possession 
 upon the realization of their securities within a certain limited period, and 
 that, subject to this restriction, they should be at liberty to adopt the same 
 remedies as private individuals, to enforce the repayment of money they had 
 advanced. 
 
 " Before concluding this branch of the subject, it may be observed, that 
 there is this distinction between a void gift in mortmain under these ancient 
 statutes, and a void gift to a religious or charitable use under the more modern 
 Act, namely, that in the former case, that is, of a corporation illegally attempt- 
 ing to acquire land, a title accrues to the Crown, which takes the property as 
 forfeited ; whereas in the case of a void gift to individual trustees for a cha- 
 ritable or religious use, the Crown acquires no right, but the heir, or next of 
 kin of the testator, or the donor himself, as the case may be, becomes en- 
 titled to the property. 
 
 *" It may be well here to mention the 43 Elizabeth, c. 4, which, although 
 it did not, in direct terms, either impose or take off any restriction upon the 
 alienation of land to charitable purposes,t yet had an effect upon the deci- 
 sions of the courts of law, and was considered to show a tendency in the 
 Legislature in favour of charities. The title of the Act, and the principal 
 object in view, was to redress the misemployment of real or personal estate 
 given to charitable uses. The construction put upon this Act by the courts, 
 authorized appointments to corporations for charitable uses, and even en- 
 larged the devising capacity of testators, by rendering valid devises to those 
 uses by a tenant in tail, and also by a copyholder, without a previous sur- 
 render to the use of a will. 
 
 " Your Committee will now proceed to consider the more important branch 
 of the inquiry submitted to them ; namely, the prohibitions or restraints 
 imposed upon alienations of property to religious or charitable purposes. It 
 appears that the 9 Geo. II, c. 36, is, foi all practical purposes, the first statute 
 which affects gifts of this description, and that this statute, though in some 
 respects modified by subsequent legislation, is the modern law upon the sub- 
 ject. It is therefore desirable, in the first instance, to state its provisions 
 with accuracy. 
 
 " The preamble of the statute is as follows : ' Whereas gifts or alienations 
 of lands, tenements, or hereditaments in mortmain, are prohibited or re- 
 
 * This paragraph did not appear in the Chairman's original draft of the 
 Report, and was added in consequence of the energetic representations of 
 Mr. Monsell and the other Catholic members, though the paragraph they 
 proposed (see their draft) was rejected ; and the one above inserted is ex- 
 ceedingly equivocal and incorrect. 
 
 t This is not true. It did in direct terms do this. Ante, p. 47. 
 
APPENDIX. 333 
 
 strained by Magna Charta and divers other wholesome laws, as prejudicial 
 to and against the common utility ; nevertheless this public mischief has of 
 late greatly increased, by many large and improvident alienations or dispo- 
 sitions made by languishing or dying persons, or by other persons, to uses 
 called charitable uses, to take place after their deaths, to the disherison of 
 their lawful heirs.' 
 
 " Without adopting the technical language of the statute, its effect will 
 be found to be as follows : — 
 
 *" No land can be given by will to any charitable purpose. 
 
 " A valid gift of land to a charitable purpose can only be made, subject 
 to the six following conditions ; namely, — 
 
 " First. The gift must be by deed. 
 
 " Second. The deed must be executed in the presence of two or more 
 witnesses. 
 
 " Third. It must be executed twelve months before the death of the 
 grantor. 
 
 " Fourth. It must be enrolled in the Court of Chancery within six calendar 
 months after the execution. 
 
 " Fifth. It must take effect immediately, and be irrevocable. 
 
 " Sixth. It must contain no reservation whatever for the benefit of the 
 grantor. 
 
 " These requisitions seem to be intended for the following purposes : to 
 prevent, in the language of the preamble, large and improvident alienations 
 being made by languishing or dying persons ; to put a check upon the alien- 
 ation of land to be devoted to charitable and permanent objects ; and to 
 ensure publicity with respect to gifts of this description , 
 
 " It appears that the fourth requisition, which compels enrolment of the 
 deed of gift in the Court of Chancery, is very defective as a means of ensur- 
 ing publicity, and that there is great difficulty in obtaining evidence of 
 charitable trusts when information is withheld. The general opinion of 
 every witness of importance, with the exception of Dr. Wiseman, who de- 
 clined to express any opinion on the subject, is that the greatest publicity 
 should be given to all deeds or instruments settling property for charitable 
 purposes, and to the mode by which the trusts declared by such deeds or 
 instruments are carried into execution. In this opinion your Committee 
 fully concur ; and they would suggest that it should be incumbent upon all 
 persons to whom real or personal property is given or bequeathed upon any 
 permanent charitable or religious object, to make a return, either to com- 
 missioners or to some public Board, of the nature of the gift, and the par- 
 ticular purposes to which it is to be applied. 
 
 " Tour Committee have had evidence given to them concerning the pre- 
 valence of what aret called spiritual wills or secret trusts ; that is to say, 
 gifts and devises of property which appear to be absolute and free from any 
 trust whatever, but which are nevertheless accompanied by some declaration 
 of the intention of the donor or testator, in such a form as to be binding 
 upon the conscience of the person to whom the property is given, and to 
 constitute him in conscience, if not in law, a trustee for particular specified 
 objects. In such cases, the declarations of trust are not submitted to the 
 court of probate, or in any other way disclosed, either when the gift takes 
 
 * Referring to a mere attorney, instead of to such men as Palgrave and 
 Burge, the Committee denoted the calibre of their proceedings. They evinced 
 a marked predilection for the evidence of the witnesses the least learned and 
 intellectual, and the most narrow-minded and technical. 
 
 t The draft Report of Mr. Monsell proposed to alter this, by introducing 
 the word " inaccurately". See post, p. 241. 
 
234 APPENDIX. 
 
 effect, or subseq^uently in the course of the administration of the property. 
 In some instances, these instructions concerning the trust appear to be com- 
 municated verbally, or, if expressed in writing, are carefully framed so as not 
 to constitute a trust within the rules of a court of equity. 
 
 * " This state of things seems to be the obyious and inevitable result of 
 that code and that policy by which a certain application of Roman Catholic 
 property, instead of being permitted by law, is prohibited by law. An alter- 
 ation of the law in this respect, would probably diminish the frequency of 
 such dispositions by Roman Catholics. But the obUgatious arising from the 
 wishes of a testator are not within the province of municipal law, for no law 
 can prevent a legatee or an heir from holding himself bound in conscience 
 to execute those wishes, to which, indeed, the opinion of mankind attaches a 
 peculiar sacredness. 
 
 " Some of the witnesses examined before your Committee, express a con- 
 fident opinion, that practices of this kind prevail to a very considerable ex- 
 tent. If this opinion be correct, your Committee thinks that it is a subject 
 of deep regret, and that every effort should be made to put the law on such 
 a foundation, as to afford no occasion for such conduct, and to prevent the 
 possibility of its occurrence hereafter. 
 
 " Your Committee have come to this conclusion for the following amongst 
 other reasons, because they think, that in all cases where property is perma- 
 nently devoted to any charitable or religious use, the heirs or next of kin, 
 or other persons who, in the absence of such a gift, would be entitled to the 
 property, ought to have the means of discovering the nature of the gift, and 
 the purposes to which it is to be applied, in order that they may ascertain 
 whether the property has been legally disposed of, and whether it has been 
 bestowed without undue influence having been exercised on the giver. 
 Your Committee also think, that the public in general and the Government 
 ought to have the means of knowing the purposes to which property is de- 
 voted ; and they also are of opinion, that for the purpose of ensuring fidelity 
 and honesty on the part of those to whom property for the purposes of cha- 
 rity is entrusted, every facility should be afforded for inquiring concerning 
 the subject-matter of every such gift, the purposes to which it ought to be 
 applied, and the manner in which, in each case, the trusts have been carried 
 into execution. 
 
 " Your Committee are well aware of the difficulty, and perhaps the impos- 
 sibility, of absolutely preventing secret trusts, and compelling the persons to 
 whom trust property is given to make the returns hereinbefore recommended; 
 but they would suggest that some provision to the following effect should be 
 made, namely, that whensoever property is given for any charitable or reli- 
 gious purpose, in such form as that, if the facts were disclosed, it would be 
 deemed a trust by a court of equity, -and the person to whom it is so given 
 shall wilfully conceal the facts, and neglect to give the proper return, he 
 shall be liable, at the suit of those who would be entitled in the absence of 
 the trusts, or, in their default, at the suit of the Crown, personally to refund 
 whatever he shall have received from the property. 
 
 " It wUl be found in the evidence of Dr. Wiseman, that he assigns two rea- 
 sons why Roman Catholic charities should not be made subject to publicity, 
 which reasons he states do not apply to the charities of other religious com- 
 munities. The first is, that for a great many years Roman Catholic property, 
 instead of being protected by law, was always attacked by law ; and Dr. 
 Wiseman, without asserting that the fact is so, thinks it possible that Roman 
 Catholics ' would find diificulty in bringing these trusts before the public, 
 
 * This paragraph was introduced from the draft Report proposed by Mr. 
 Monsell, post, p. 242. 
 
APPENDIX. 235 
 
 without knowing, first of all, that they would be secured against what had 
 been, in their opinion, the unjust operation of the law in respect of them for 
 several centuries'. Dr. Wiseman suggests, ' that something should be done 
 similar to what has been done for properties of other religious bodies, such 
 as a good title should be given upon proof of application for a certain num- 
 ber of years ; upon usage shown, they should be confirmed, and a title given'. 
 
 " Your Committee see no objection to this proposal, but they prefer ex- 
 pressing their opinion in the more general form, to the effect, that if there 
 be any defects in the title to property devoted to Roman Catholic charities, 
 arising from practices adopted in former times to evade laws that are now 
 repealed, provisions should be made to remedy such defects. The other rea- 
 son alleged by Dr. Wiseman why the Roman Catholic charities should not be 
 made public, is the law concerning superstitious uses. This branch of the 
 subject is treated of in a subsequent part of the Report, but your Committee 
 must here state, that whether any alteration be or be not made in the law 
 on this head, they cannot concur in the opinion that it constitutes a suffi- 
 cient reason against the publicity of Roman Catholic charities in general. 
 
 " Referring back to the provisions of the 9th George II, c. 36, it will be 
 recollected that according to the present law no land can be left by will to a 
 charitable use. " Differences of opinion exist amongst the witnesses examined 
 before your Committee on the question, whether this absolute prohibition 
 should be maintained, or whether it should be permitted to devise land to a 
 charitable purpose by a will made a certain time before the death of the 
 testator. 
 
 " Your Committee do not recommend any alteration in the law which pro- 
 hibits devises of land for the purposes of raising a revenue to be devoted to cha- 
 ritable purposes ; but they are of opinion that there is a material dilference 
 in principle between devises of this description, and gifts of small pieces of 
 land to be used as sites for buildings, whether for religious or other purposes. 
 There are a series of Acts, 6 and 7 W. IV, c. 70 ; 4 and 5 Vict. c. 37 ; 12 and 
 13 Vict. c. 49; 14 and 15 Vict. c. 24, which provide facilities for the con- 
 veyance and endowment of sites for schools. These statutes prove that in 
 the opinion of the legislature, with respect to sites for schools, not only 
 should there be no restraints upon the alienation of lands, but that, for such 
 purposes, there should be special and particular facilities. There are also 
 several statutes giving facilities for the conveyance of sites of land for 
 church building purposes. Your Committee recommend that there should 
 be a complete exemption from all restraints upon alienation in favour of 
 sites of land to be used for religious edifices, whether in connection with the 
 Established Church or any other religious community, or to be used for hos- 
 pitals, cemeteries, museums, or places of education. 
 
 It wUl be necessary to take care that any exception of this description 
 should not be made the means of systematic evasions, and consequently pro- 
 visions will have to be introduced into the statute, to ensure that in each 
 case no more land than is actually required for the site of that particular 
 building, and for the purpose indispensable for its use, is exempted from the 
 restrictions of the general law. Your Committee would suggest that the 
 heir-at-law, or other person who would be entitled to the land in the event 
 of the gift being void, should have a power of setting aside the alienation of 
 any land not in reality used as the site of a buUding of this description, or 
 for the purposes above mentioned. 
 
 " It may here be observed, that all the requisitions provided by the sta- 
 tute to prevent Improper alienation of land to charitable purposes, apply not 
 only to voluntary gifts for such purposes, but also to bond fide sales, subject 
 however to this exception, that the third requisition, which requires the 
 deed to be executed twelve months before the death of the person conveying 
 the land, is not necessary in the case of a sale. 
 
236 APPENDIX. 
 
 "The case of a honA fide sale, that is, where money already devoted _ to 
 charity is laid out in land, clearly differs from the case of a voluntary gift, 
 and the reasons which render restrictions necessary in one case do not in 
 general apply to the other. Moreover, it appears that very great practical 
 inconveniences have arisen in consequence of some of the existing restric- 
 tions. Yovur Committee would recommend that, whatever be the requisitions 
 made with respect to the publicity of deeds conveying land to charitable 
 uses, they should apply to cases of sales as well as to cases of voluntary 
 deeds. Subject to tMs exception, your Committee think that all restraints 
 should be abolished in cases of hond, fide sales. And your Committee would 
 further recommend that, with as little delay as possible, a measure should be 
 introduced into Parliament for the purpose of remedying any defects of title 
 to lands which have been devoted to charitable purposes, when such defects 
 have arisen in consequence of the application of the restrictions in question 
 to hand fide sales. 
 
 " Tour Committee wUl now proceed to state the provisions in force re- 
 specting personal estate in general, and the modifications they propose in 
 the existing law. 
 
 " In the first place, pure personal estate, that is, personal property not 
 charged upon or connected with land, and not directed to be laid out in land, 
 may be given or bequeathed to charitable purposes without any special re- 
 straint or condition whatsoever. 
 
 " With respect, however, to personal estate directed to be laid out in the 
 purchase of lands for charitable purposes, a different rule prevails. Gifts of 
 personal estate with such a direction, can only be made subject to the same 
 restrictions as have hereinbefore been stated in this Report with respect to 
 land itself. In addition to these restrictions, stock directed to be laid out in 
 land and given for a charitable purpose, must be transferred Six calendar 
 months before the death of the person giving it. 
 
 " Again, money secured by mortgage, or money in any way charged upon 
 or connected with real estate, is treated as land, and can only be devoted to 
 a charitable purpose in the same way as land itself. 
 
 " Independently of any consideration concerning the degree of restriction 
 which ought to be imposed on alienations of property for a charitable pur- 
 pose, great evUs arise from their somewhat technical distinctions in the law 
 as they affect different kinds of personal estate. It is in evidence before 
 your Committee, that scarcely any property can be safely disposed of, where 
 legacies are given to charities, and the property is considerable, without a 
 suit in Chancery. ' As such a suit involves an investigation of the relative 
 amounts of the different descriptions of property, the expense is necessarily 
 large, and usually falls upon the residuary legatee, who has also to pay the 
 charitable legacies themselves. Your Committee are of opinion, that these 
 distinctions should be abolished entirely, and that the same law should be 
 enacted with respect to all descriptions of personal estate given for charit- 
 able purposes, and whether it be directed to be laid out in land or not. 
 
 * " Tour Committee observe, that one of the most important witnesses, 
 the Right Honourable Thomas Pemberton Leigh, says, that the statute 9th 
 Geo. II, is attended with extreme inconvenience ; and he gave his opinion 
 against extending to the bequests and donations of personal property, the 
 same restrictions which prevail in respect to real property ; and Mr. Bunt- 
 ing, in his evidence, shows the great practical evils resulting from that 
 statute. 
 
 g 
 
 * The introduction of this paragraph was owing to the exertions of Mr 
 Monsell and the Catholic members. The Chairman, in his draft, had actually 
 omitted all reference to this opinion of the greatest authority he examined, 
 because it was against his own I Was this honest ! 
 
APPENDIX. 237 
 
 " Your Committee, in recommending what ought to be the general law 
 applicable to gifts of personal estate for charitable purposes, feel the im^ 
 portance of the subject, and they are not able to rely upon any general 
 agreement in opinion on the part of the witnesses examined before them. 
 The restrictions which have hitherto applied to alienations of land for cha- 
 ritable purposes, and which your Committee, subject to certain modifications, 
 propose to continue, would, if applied to personal estate, prevent any legacy 
 being given under any circumstances whatever to a charity. Your Com- 
 mittee are of opinion, that so stringent a provision is not in accordance with 
 the feelings of the community in general, would give great dissatisfaction, 
 and does not appear from the evidence which has been taken to be generally 
 demanded. An opinion has, however, been expressed by some of the wit- 
 nesses examined before your Committee, that while it is beneficial for the 
 country generally, that a testator should not be restricted in disposing of his 
 property, it is necessary that the exercise of such discretion in matters of 
 charity, should be subject to some interference of the legislature.* 
 
 " There seems no reason why the trustees, to whom charitable legacies 
 are given, should not be bound to make the same returns as where recom- 
 mended with respect to real estate, concerning the amount of the property 
 given to them, and the purposes to which it ia to be applied, so as to ensure 
 perfect publicity in all cases. 
 
 " Your Committee are desirous that the law should be impartial towards 
 all religious communities, and they think that there are objections to the 
 legislature expressing opinions in favour of particular forms of charitable 
 bequests. Having made certain recommendations concerning the law of 
 real estate, and having recommended one general exception in favour of 
 sites for such purposes as were before mentioned, they are of opinion, that all 
 other exemptions should be abolished. It appears, for instance, that the 
 Ecclesiastical Commissioners have power to take and hold land notwithstand- 
 ing the statutes of mortmain. Your Committee see no objection to the Ec- 
 clesiastical Commissioners being permitted to hold lands, notwithstanding 
 their corporate character ; but they think that in the acquisition of property 
 they should be subject to the same restrictions as other trustees for charita- 
 ble or religious purposes. 
 
 " Again, in the Act of 9 Geo. II, c. 36, special exceptions are made in 
 favour of the Universities and Colleges of Eton, Winchester and Westmin- 
 ster. Your Committee would submit, that such exceptions are of little if 
 any practical value to the bodies which possess them ; that they are likely 
 to excite jealousy ; and that they can scarcely be maintained upon any prin- 
 ciple of general fairness and equality. Your Committee would therefore 
 recommend, that these and all other exceptions to a general law should be 
 abolished. 
 
 * The Chairman had here proposed the following paragraphs, utterly 
 against all the weight of the evidence of the highest authorities : — 
 
 " Your Committee recommend that every person shall be at liberty to 
 bequeath personal property of any description to charitable purposes, pro- 
 vided the will containing such legacy be executed six months before the 
 death of the testator ; and that, in addition to the ordinary attestation, it 
 should be attested by a person of some official position, to be defined by the 
 Act. 
 
 " It will be recollected that with respect to realty, not only can no devise 
 be made for charitable purposes, but also no gift or conveyance for such a 
 purpose can be made, except twelve months at least before the death of the 
 donor, and subject to certain other restrictions. Your Committee are of 
 opinion that any transfer of stock to trustees, or any a,ssignment of a mort- 
 gage, to be held upon charitable trusts, ought not to be valid unless made 
 six months before the death of the donor." 
 
238 APPENDIX. 
 
 " Certaia of the witnesses examinied before your Committee, have given 
 evidence of interference by a foreign tribunal, the Court of Propaganda at 
 Rome, in disputes concerning matters of a temporal character, and have 
 stated, that decisions made by that council on appeals from this country, 
 have affected the application of property left upon trusts for purposes of a 
 religious or charitable description, *Tour Committee have not fully inves- 
 tigated the extent to which the practice has prevailed, or the manner in 
 which such appeals have been conducted, because they have not considered 
 the evil complained of sufficiently within the terms of the reference made to 
 them, to authorize them in making any recommendation for an alteration in 
 the English law adequate to the grievance complained of.t At the same 
 time, it ought not to be lost sight of, that the difficulty of redress has been 
 much increased by the operation of the enactment of the 2 and 3 WiU. IV, 
 c. 114. By that act, Roman Catholic charities and chapels are placed on the 
 same legal status with those of Protestant dissenters. That is to say, wherever 
 the law recognised in the ruling authority of a dissenting Church the power to 
 manage, and to innovate upon the management of its charities, by the 2 and 
 3 WUl. IV, c. 114, the ruling authority of the Roman Catholic Church was 
 placed on the same footing. The difference, however, is material. In dis- 
 senting Churches, the ruling authority is in the congregation ; in the Roman 
 Catholic Church, it is in the Pope. 
 
 " Your Committee have now to consider a branch of the law which is 
 nearly obsolete, namely, that which relates to what are called superstitious 
 uses. The law upon this head seems to have taken its origin from the sta- 
 tute 1 Edw. VI, c. 14, entitled " The Act for Chantries Collegiate". Per- 
 haps the most satisfactory mode of explaining the law upon this subject will 
 be, by giving an extract from a judgment of Lord Cottenham, which has 
 been brought before the attention of your Committee. In the cause of West 
 V. Shuttleworth, reported in the second volume of Mylne and Keene's Re- 
 ports, p. 684, a question arose under the following circumstances : a lady, 
 after certain bequests, concluded her will with the following words : ' What- 
 ever I have left to priests or chapels, it is my wish and desire the sums may 
 be paid as soon as possible, that I may have the benefit of their prayers and 
 masses'. Lord Cottenham, in deciding upon the validity of these bequests, 
 said, ' The gifts to priests and chapels remain to be considered ; and these 
 are not affected by the 2 and 3 WUl. IV, c. 115, which applies only to 
 schools, places fo* religious worship, education, and charitable purposes. 
 Taking the first, gifts to priests and chapels in connexion with the latter, 
 there can be no doubt that the sums given to the priests and chapels were 
 not intended for the benefit of the priests personally, or for the support of 
 the chapels for general purposes, but that they were given as expressed in 
 the letter for the benefit of their prayers for the repose of the testatrix's 
 soul and that of her deceased's busband ; and the question is, whether such 
 legacies can be supported. It is truly observed by Sir WUliam Grant, in 
 Gary v. Abbott, that there was no statute making superstitious uses void 
 generally, and that the statute of Edward VI, related only to superstitious 
 uses of a particular description then existing; and it is to be observed that 
 that statute does not declare any such gift to be unlawful, but avoids cer- 
 tain superstitious gifts previously created. The legacies in question, there- 
 fore, are not within the terms of the statute of Edward VI, but that statute 
 has been considered as establishing the illegality of certain gifts, and 
 
 * The following passage was not in the Chairman's Report, and is due to 
 the zeal of Mr. Anstey. 
 
 + With all which the Committee had no concern whatever, and no right 
 to interfere. 
 
APPENDIX. 339 
 
 amongst others, the giving legacies to priests to pray for the soul of the donor, 
 has, in many cases collected by Duke, been decided to be -within the super- 
 stitious uses intended to be suppressed by that statute. I am, therefore, of 
 opinion, that these legacies to priests and chapels are void'. 
 
 It may be here mentioned, that by the 2 and 3 Will. IV, c. 115, sec. 1., 
 it is enacted that " His Majesty's subjects professing the Roman-Catholic 
 religion, in respect to their schools, places for religious worship, education, 
 and charitable purposes in Great Britain, and the property held therewith, 
 and the persons employed in and about the same, shall in respect thereof be 
 subject to the same laws as the Protestant Dissenters are subject to in 
 England in respect to their schools and places for religious worship, educa- 
 tion, and charitable purposes, and not further or otherwise." 
 
 It may also be observed, that the principle of the law concerning super- 
 stitious uses is not applicable exclusively to Roman Catholics. In the 
 Report on the Law of Mortmain, made in the year 1844, a case is mentioned 
 (p. 72) where gifts were held void as superstitious, though apparently made 
 by a Protestant, and not connected with any peculiar Roman Catholic doc- 
 trines. It would appear from the language of Lord Cottenham, and the 
 statute quoted above, that no legacy or bequest for a charity, properly so 
 called, would be deemed superstitious, but that a gift by will, made by a 
 person for his own benefit after death, would be deemed to be not a charity 
 within the meaning of the Act above quoted, and would be held void. 
 
 It appears from the evidence of the Master of the Roll§ of Ireland, that 
 the statute of Edward VI, from which the doctrine concerning superstitious 
 uses emanated, never was in force in Ireland ; and the principle of the law 
 laid down by Lord Cottenham was never recognised. 
 
 Your Committee are of opinion that the present law on this subject in 
 England is very vague and uncertain, and that in any view of the case the 
 statute of Edward VI should be repealed, together with the legal inferences 
 which have been deduced from it. Upon the repeal of this Act, a definition 
 as accurate as possible should be given of the meaning of the word charity, 
 as applied to gifts or bequests of property, and that there should be some 
 statutory declaration as to what gifts should be deemed void upon the 
 ground of public policy or superstitious uses. 
 
 In conclusion, your Committee would observe, that the 9 Geo. II, c. 36, 
 does not extend to Ireland, but that a provision is contained in the Charitable 
 Bequests Act to the following efiect : " That no donation, devise, or bequest 
 for pious or charitable uses in Ireland, shall be valid to create or convey 
 any estate in lands, tenements, or hereditaments, for such uses, unless the 
 deed, will, or other instrument containing the same shall be duly executed 
 within three calendar months, at the least, before the death of the person 
 executing the same ; and unless every such deed or instrument, not being a 
 will, shall be duly registered in the office for registering deeds in the City 
 of Dublin, within three calendar months after the execution thereof." 
 
 With respect to Scotland, the basis of the law is different, and your 
 Committee do not feel themselves competent to propose any precise provi- 
 sions for its amendment on this subject ; but they would direct the attention 
 of the House to the evidence given by the Lord Provost of Edinburgh, and 
 Mr. Sinclair, at page 431, which appears to establish that some change is 
 requisite. 
 
 Dbaft Report, proposed by Mr. MoNSEtiL.* 
 t 6. The principal object of the Mortmain Acts (properly so called) 
 
 * The first five paragraphs were the same as the Report agreed to from 
 the Chairman's draft. In the preparation of the draft, Mr. Monsell was as- 
 sisted by that learned civilian Dr. Bowyer. 
 
 t This is the first paragraph entirely new. 
 
240 APPENDIX. 
 
 originally, was the protection of the incidents of feudal tenures. Thus 
 Blackstone says, ' at common law it was necessary for corporations to have 
 a license in mortmain from the Crown, to enable them to purchase lands ; 
 for as the king is the ultimate lord of every fee, he ought not, unless by his 
 own consent, to lose his privilege of escheats and other feudal profits, by the 
 vesting of lauds in tenants that can never die. And besides this general 
 license from the king as lord paramount of the kingdom, it was requisite 
 also, wherever there was a mesne or intermediate lord between the king 
 and the alienor, to obtain his license also (upon the same feudal principles), 
 for the alienation of the specific land. And if no such license was obtained, 
 the king or other lord might enter on the land so aliened in mortmain as a 
 forfeiture.' This restraint was, however, evaded ; and Blackstone goes ou 
 to show ' that when dotations of religious houses began to grow numerous, 
 it was observed that the feudal services ordained for the defence of the 
 kingdom were every day visibly withdrawn, and that the circulation of 
 landed property from man to man began to stagnate ; and therefore, in 
 order to prevent this, it was ordered by the second of King Henry the Third's 
 great charters, and afterwards by that printed in our common statute books, 
 that all such attempts should be void, and the land forfeited to the lord of 
 the fee." This was the first statute which put any restraint on the aliena- 
 tion of land to corporations. 
 
 " 7. The second statute of Mortmain, is statute 7 Edw. I, which extends 
 the prohibition to all corporations, the first statute applying merely to 
 religious houses. The subsequent statutes, of which there is a good history 
 in the evidence of B. L. Chapman, Esq.*, were framed for the purpose of 
 meeting various contrivances intended to evade the prohibition of the law 
 of Mortmain. 
 
 " 8. Your Committee observe that Blackstone says, that by alienations 
 to bodies corporate the circulation of landed property from man to man 
 began to stagnate ; and no doubt, in later times, the law of Mortmain has 
 been viewed with reference to principles of public economy, which rendered 
 it undesirable that any very considerable amount of landed property should 
 be held in perpetuity ,t and so withdrawn altogether from commerce ; and 
 the feudal reasons on which this branch of law was originally founded 
 having ceased, your Committee submit that the policy of the Law of Mort- 
 main must be considered with reference solely to those economical prin- 
 ciples which must be the groundwork of any future legislation on the 
 subject. 
 
 " 9. It is also important to observe, that as there are now in the United 
 Kingdom no incorporated religious houses, the law of Mortmain must be 
 considered without reference to the expediency or inexpediency of those 
 foundations, and their endowment. 
 
 " 10. chancellor Kent, in his Commentaries, part IV, section xxxiii, 
 p. 282, thus states the American law on the subject of mortmain : ' We 
 have not in this country re-enacted the statutes of Mortmain, or generally 
 assumed them to be in force ; and the only legal check to the acquisition of 
 lands by corporations consists in those special restrictions contained in the 
 Acts by which they are incorporated, and which usually confine the capacity 
 to pjirchase real estate to specified and necessary objects, and to the force 
 to be given to the exception of corporations out of the Statute of Wills ' 
 
 "11. It is necessary to observe, with regard to that exception, that by 
 
 * Bather a very bad history ; exceedingly disingenuous, and indeed un- 
 true. See note to his evidence. It is a pity the draft did not refer to the 
 evidence of Sir F. Palgrave, Committee of 1844. See ante, p. 170. 
 
 t Which it need not be. See ante, p. 36, and 1 and 2 Geo. IV, u. 92. 
 
APPENDIX. 241 
 
 construction of statute 43 Eliz. c. 4, it is held that a devise to a corporation 
 for a charitable use is valid as operating in the nature of an appointment 
 rather than of a bequest : and indeed the piety of Judges (as Blackstone 
 says,) hath formerly carried them great lengths in supporting such charitable 
 uses. 
 
 " 12. But the principle laid down by Kent seems sound with reference 
 to the requirements of modern society. As corporations are creatures of the 
 law, it is manifestly reasonable that the law should define their right of 
 holding land, as well as their other legal rights, confining it within such 
 limits as to enable them to fulfil completely all the objects for which they are 
 intended, and at the same time prevent their holding land to such an extent 
 as to injure the general economical interests of the country on which the 
 legal principles against perpetuities are grounded. 
 
 '' 13. The prerogative of the Crown under 7 and 8 Will. III. c. 37, to 
 grant licenses to corporations to hold land in mortmain, would, if admi- 
 nistered on sound principles, and not as matter of favour, be reasonable and 
 useful ; and it deserves consideration whether all applications for such 
 licenses should not be referred to the Board of Trade (as is the law by stat. 
 10 and 11 Vict. c. 78, with regard to companies having obtained a certificate 
 of complete registration under stat. 7 and 8 Vict. c. 110), and decided 
 upon according to the general principles laid down above. 
 
 " 14. The attention of your Committee has been called to the effect of 
 the Mortmain I^ws in precluding corporations from taking lands on mort- 
 gage, after they have exceeded the amount which they were enabled to take 
 by license.* 
 
 + " 17. Your Committee have next to consider the law regarding 
 charitable trusts, which is popularly and incorrectly included in the 
 denomination of mortmain. 
 
 " 18. It is here important to remark that, up to the time of Geo. II, 
 there was no restraint imposed by law on alienations of real or personal pro- 
 perty, by deed, for religious or charitable uses, except only as to the con- 
 veyance of land to corporations ; and as the sole reason of that exception 
 was the loss of feudal profits or services, your Committee conceive it may be 
 stated that, during the long period referred to, including, as it does, nearly 
 200 post reformation years, up to little more than a century ago, there 
 existed no law in this country, the object of which was to restrain or pre- 
 vent alienations by deed (whether of realty or personalty) for charitable or 
 religious uses. ' It should be noted ', says Sir F. Palgrave, ' as one of the 
 features of the time, that from the accession of Elizabeth to the accession of 
 Geo. II. the feeling of the Legislature, the Judges, and the country, was in 
 favour of Charitable Bequests ; — the jealousy which now exists did not then 
 exist '. "With respect to alienations of laud by devise, although the feudal 
 doctrine of non-alienation, without consent of the lord, imposed some restric- 
 tions on testators, there was no restriction on alienation of land by devise 
 directed against gifts to religious or charitable purposes ; and the Statute 
 of Wills seems strongly to confirm the opinion already expressed by_ your 
 Committee, that the policy of the law hitherto was to allow of alienation of 
 land for religious or permanent purposes, excepting only to corporations. 
 The Act (43 Eliz. c. 4), to which reference has already been made, for 
 redressing the unemployment of lands and other property ' given, limited, 
 appointed, and assigned for charitable uses, places the policy of the law in 
 the clearest light'. „ ,, , . . ■, , 
 
 " 19. By the Act of Elizabeth, the statutes of Mortmam were considered 
 
 * The next two paragraphs were the same as in the Chairman's draft, 
 agreed to as ante, p. 234. 
 
 t Here again the draft is different, the following passages are entirely new, 
 
242 APPENDIX. 
 
 to be repealed as to all charitable uses within its scope, and under the 
 words limited and appointed, ' effect was given to devises, or gifts for 
 charitable purposes, which, at common law, wovild be null and void '. 
 
 " 20. In this state of things, the statute of George II. was enacted 
 through the influence of Lord Hardwicke, whom Sir F. Palgrave describes as 
 ' a great Judge, but one whose narrowed, nay, bigoted views, have caused so 
 much mischief to charitable' uses '. Its object was to restrain charity, and 
 this will cause but little surprise when it is remembered that the age in 
 which it passed was that in which the morals of the cpuntry had sunk to 
 their lowest ebb ; and in which Bishop Butler says, it was considered a 
 symptom of mental imbecility to defend the truth of Revelation, The effect 
 of that statute is thus stated in the evidence of B. L. Chapman, Esq., 79. 
 ' Its first effect was to prohibit iill devises whatever of lands to corporations 
 or individuals for any charitable purpose whatever. The second effect was, 
 to restrict conveyances of lands to individuals for charitable uses in the 
 manner mentioned in the Act, namely, that the donor must live twelve 
 mouths after, and that the gift must be by deed enrolled without any reserv- 
 ation to himself. Conveyances of lands to corporations for charitable 
 purposes would come under these restrictions, in addition to the question of 
 the license from the Crown. A third effect is, that the gift of any estate or 
 interest in lands is prohibited. A great many cases, and a great deal of 
 question have arisen as to this last restriction.' 
 
 "21. The policy of this statute is in several respects different from that 
 of the Mortmain Laws properly so called. In the first place^ it does not in 
 any way restrict, or afford means of restricting, the quantity of property 
 which may be given for permanent charitable or religious purposes ; no 
 license is required by the Act. And, in the second place, it absolutely 
 forbids gifts of real property for permanent charitable or religious purposes 
 by wiU. But like the Mortmain Laws, it affects only gifts of real property, 
 and interests in reality, and of personal property, which being given to be 
 laid out in the purchase of lands, tenements, and hereditaments, is in the 
 eye of the law considered as realty. 
 
 " 22. Another peculiarity of the statute 9 Geo. II. is, that if a gift be 
 void under that statute, the property goes to the individuals to whom it 
 would have gone if no such gift had been made ; whereas a devise or gift of 
 land to a corporation in violation of the Laws of Mortmain involves a 
 forfeiture to the Crown. 
 
 " 23. The old Mortmain Law was intended to restrain corporate bodies 
 from acquiring possession of a great amount of land to the prejudice of the 
 King, and other Lords, and of the public polity of the kingdom ; but the 
 statute 9 of Geo. II. only prescribes the mode in which land, &c., may be 
 made capable of being conveyed in trust for charitable or religious purposes. 
 In truth, corporate bodies, being creatures of the law, and fictitious persons 
 in law, with a legal privilege of immortality, their power of holding land 
 was limited by the law. But gifts of land or other property to trustees, in 
 trust for the purposes above referred to, spring out of the power which the 
 law of England allows to the subject, of disposing of his own private pro- 
 perty as he pleases. Trustees are not bodies politic, like corporations, but 
 private individuals, holding the trust property in precisely the same way, 
 whether the object of the trust is a charity, or any other species of settle- 
 ment. The only difference is, that the charity is a more permanent object ; 
 and to this permanency the policy of the law is not inimical, for the 
 law only professes to prevent undue influence over dying persons, in 
 favour of charitable objects, to the prejudice of their lawful heirs. So the 
 statute requires that the gift be made to take effect in the lifetime of, and 
 as against the donor himself, requiring that the deed be executed twelve 
 months at least before his death, for the purpose of preventing death-bed 
 
APPENDIX. 243 
 
 dispositions ; but there is nothing in the Act to preTent every acre of land 
 in the kingdom from being vested in trustees for charitable purposes. No 
 part of the evidence produced before us shows that any unreasonable or 
 improper amount of landed property is vested in such trustees, or that there 
 is any danger of this occurring. 
 
 " 24. Your Committee observe, that one of the most important witnesses, 
 the Right Honourable Thomas Pemberton Leigh, says, that the statute 
 9 Geo. II. is attended with extreme inconvenience ; and he gave his 
 opinion against extending to the bequests and donations of personal pro- 
 perty the same restrictions which prevail in respect to real property ; and 
 Mr. Bunting, in his evidence, shows the great practical evils resulting from 
 that statute. 
 
 " 25. An opinion has, however, been expressed by some of the witnesses 
 examined before your Committee, that while it is beneficial for the country 
 generally that a testator should not be restricted in disposing of his property, 
 it is necessary that the exercise of such discretion in matters of charity 
 should be subject to some interference of the legislature. 
 
 " 26. The witnesses who have given expression to this opinion have sup- 
 ported it on one or both of the following grounds : — 
 
 " 1st. The example of foreign countries. 
 
 " 2nd. The alleged frequency of undue influence being exercised over 
 persons on their deathbeds. 
 
 " 27. With reference to the first argument, your Committee desire to 
 remark, that the policy of the foreign countries referred to, with regard to 
 the power of testators, is diflerent in principle from that which obtains in 
 this country. 
 
 " 28. By the provisions of the Code Napoleon, a testator is permitted to 
 dispose only of one child's portion of his property ; for instance, if he have 
 five children, four-fifths of his property go in equal portions to each of his 
 children, and neither for charitable nor any other purposes, is he permitted 
 to dispose by wUl, of more than the remaining one-fifth. 
 
 " 29. The law of Spain does not allow the testator, if he has children, 
 grand-children, and their descendants, to dispose by will, of more than one- 
 fifth of his property. And the law generally of foreign countries is founded 
 on the principle shortly thus expressed by an eminent French jurist. La loi 
 faisait les Kiriiiers, non volonte de Vhomme. 
 
 " 30. On the other hand, the law of this country has been formed upon 
 the opposite principle, that voluntas hominis constituit heredem. It is 
 lawful for every person to devise, bequeath, or dispose of by will, all real 
 and all personal estate which he shall be entitled to, either at law or in 
 equity, at the time of his death, and which if not so devised, bequeathed, or 
 disposed of, would devolve upon the heir-at-law ; and the result of this 
 system is, as stated by one of the witnesses examined before your Committee, 
 that a person possessed of considerable estates, and having a dozen children, 
 may leave those children utterly unprovided for, and bequeath the whole of 
 his property to a prostitute. 
 
 " 31. Your Committee do not feel themselves called upon to pronounce 
 an opinion as to the <;omparative merits of these two opposite systems. 
 
 " 32. As to the alleged frequency of undue influence being exercised over 
 persons on their deathbeds, your Committee have directed their anxious at- 
 tention to this matter. 
 
 " 33, It may here be convenient to state what the law is (apart from any 
 statutes), as to undue influence in the case of a devise or testament ; pre- 
 mising that it applies not only to realty but also to personalty, as to which 
 there is at present no restraint with regard to gifts or bequests for charitable 
 purposes. Not only is a will invalid if obtained by fraud, but by any undue 
 influence which any law can possibly reach ; thus over-persuasion by a wife 
 
 r2 
 
244 APPENDIX. 
 
 is sufficient, and the courts are peculiarly jealous of any influence acquired 
 by a ' spiritual adviser' or by ' superstitious terrors', and the testator must 
 moreover be of sound disposing mind; a will, impeachable on any of these 
 grounds, can either be prevented from probate in the ecclesiastical courts, or 
 may be set aside by bill in equity. 
 
 " 34. Your Committee have endeavoured to test the efficiency of the exist- 
 ing law by experience. 
 
 " 35. Among other witnesses, they have examined Mr. Wale, who stated 
 to the registrar of the Consistorial Court in Dublin, his wish to find out any 
 wills in which the death of the testator took place immediately after the 
 date of the will. The registrar of the court, of which Mr. Wale's father-in- 
 law was the judge, selected such wills as he thought bore most upon this 
 point. In most of the forty to seventy or eighty so selected, Mr. Wale saw 
 there was a considerable lapse of time between the date of the will and the 
 date of the death. He therefore put them aside, and procured copies only 
 of those in which the time between the death of the testator and the date of 
 the will was short. 
 
 " 36. Those wUls, so selected, Mr. Wale submitted to your Committee. 
 
 " 37. In every instance in which they have had the opportunity of ex- 
 amining evidence as to the circumstances under which those wills were 
 made, it appears clearly that not the slightest trace of undue influence is to 
 be found.* 
 
 " 38. As the witness stated, that his motive for instituting the inquiry he 
 made, was the feeling that, if there were any wills of the same description 
 as the first he examined, viz. that of Marcella Ayres, such a discovery would 
 certainly lead to the necessity of extending the Statute of Mortmain to per- 
 sonalty as well as real property. Your Committee think it important to ob- 
 serve, that the object of the Eey. Dr. Yore, in inducing Marcella Ayres, 
 shortly before her death, to make a will, was to prevent the whole of her 
 property from falling absolutely into his hands, as it would have done if she 
 had died intestate. 
 
 " 32. Your Committee, on this matter, draw attention only to the evi- 
 dence of Mr. Wale, as he is the only witness examined before them who has 
 investigated any large number of cases, for the purpose of discovering in-- 
 stances in which undue influence might be suspected; and it must be 
 evident, that no law can provide against isolated cases of carelessness or 
 injustice. 
 
 " Your Committee, influenced by these considerations, therefore agree 
 with the Right Hon. Thomas Pemberton Leigh, the" highest legal authority 
 who has appeared before them, that the inconveniences arising from gifts of 
 personalty in favour of charities, are not such as to require legislative 
 interference. 
 
 "41. Your Committee have had evidence given to them concerning the 
 prevalence of what have been inaccurately called secret trusts and spiritual 
 wUls ; that is to say, gifts and devises of property which are legally abso- 
 lute and free from any trust whatever, but which are accompanied by some 
 declaration of the intention of the donor or testator, in such a form as to be 
 binding upon the conscience of the person to whom the property is given, 
 and to constitute him, by a conscientious obligation in the nature of a debt 
 of honour, a trustee for particular specified objects. In such cases, these 
 intentions are not submitted to the court on probate, or in any other way 
 disclosed, either when the gift takes efieot, or subsequently in the course of 
 the administration of the property. In some instances, these instructions 
 appear to be communicated verbally, or, if expressed in writing, are care- 
 
 * What can be thought of the fairness or justice of the Committee in re- 
 fusing to insert -this paragraph ? 
 
APPENDIX. 345; 
 
 fuUy friimed so as not to constitute a trust within the rules of a court of 
 equity. 
 
 " 42. This state of things seems to be the obvious and inevitable result of 
 that code and that policy by which Roman Catholic property, instead of 
 being protected by law, was attacked by law. An alteration of the law in 
 this respect, would greatly diminish the frequency of such dispositions by 
 Roman Catholics. 
 
 " 43. But the obligations arising from the wishes of a testator, are not 
 within the province of municipal law, for no law can prevent a legatee or 
 an heir from holding himself bound in conscience to execute those wishes, to 
 which, indeed, the opinion of mankind attaches a peculiar sacredness ; and 
 cases of this description are of daily occurrence, in one form or other, among 
 all religious denominations.* 
 
 No. III. 
 
 COURT OF CHANCERY IN IRELAND. TRINITY TERM 1852. 
 
 Carherry v. Cox.\ — This was an ordinary suit to administer the 
 estate of the late Richard Keatinge, Esq., of Dungarvan. The 
 usual decree for an account of the debts, legacies, &c., had been 
 obtained. The case novsr came before the court on exceptions taken 
 by the residuary legatee, Mr. Cox, to a portion of Master Henn's 
 report, finding, in the usual manner, amongst others, a variety of 
 bequests for charitable and religious purposes to the parish priest of 
 Dungarvan, to the convent at Dungarvan, and to the monks of Mount 
 Melleray, and of the monastery of Shandon, county Waterford. The 
 first exception stated that, inasmuch as the said master (Henn) 
 had found that the said testator, Richard Keatinge, by his last will 
 and testament, bearing date the 8th of January 1844, devised and 
 bequeathed the sum of £20 yearly to the monks of Shandon, near 
 Dungarvan, to provide clothing for the poor children attending their 
 school, whereas the said master should have found such devise and 
 legacy as void and inoperative, same being given to a body not recog- 
 nized by law and incapable of taking the same, and that there was no 
 
 * The remainder of the draft did not differ from the Chairman's as agreed 
 to, ante, p. 238. 
 
 t A case showing that the old mortmain laws cannot apply to Catholics, 
 (as their religious houses are not recognized as corporations with perpetual 
 succession,) and that they cannot take bequests in any legal capacity, but 
 that tlie " emancipation" act practically confiscates such bequests. 
 
246 APPKNDIX. 
 
 evidence beforethe said master of any legal body being in existence 
 and known as the monks of Shandon, and no suiEcient evidence to sus- 
 tain said finding. There was a similar exception to that portion of the 
 report of the master, finding in the usual course, a similar bequest of 
 £20 a-year to the monks of Mount Melleray, near Cappoquin, in the 
 county Waterford, for the repairs and improvement of their chapel and 
 lands. 
 
 Mr. Brewstek, Q.C, on behalf of Mr. Cox, the residuary legatee 
 and the party excepting, stated the exceptions. The learned counsel 
 submitted, that the exception to the report for not finding the dura- 
 tion of the bequests, or the period for which they should be paid, was 
 one which ought to be allowed. The second exception, taken on the 
 ground that the master had not ascertained, by legal evidence, the 
 existence of any such persons or bodies as those mentioned by the tes- 
 tator, was one, the validity of which could not be disputed. Accord- 
 ing to the statute law, all such bequests to such persons or bodies were 
 absolutely and distinctly prohibited. He apprehended that, independ- 
 ent of the primary objections, a devise to such persons or communi- 
 ties chargeable upon real estate, would be open to many serious and 
 fatal objections, but even if they were merely chargeable upon the 
 real estate, the demise would be void and inoperative. He did not in- 
 tend to contend, that the bequest to the parish priest of Dungarvan, 
 for the purposes specified, was void — neither was it his intention to 
 make any objection to the bequest to the nunnery at Dungarvan; for 
 in the enactments directed against religious orders and communities, 
 exceptions were made for nunneries. But he submitted, that the be- 
 quests to the monks of Shandon and of Mount MeUeray, according to 
 the authorities upon the subject, we^e void and inoperative in the eye 
 of the law. In support of this proposition, he would refer to the 28th 
 section of the act of George IV, or, the Catholic Relief Act, which 
 stated: — "And whereas Jesuits, and members of other religious 
 orders, communities, or societies of the Church of Rome, bound by 
 monastic or religious vows, are resident within the United Kingdom, and 
 it is expedient to make provision for the gradual suppression and final 
 prohibition of the same therein: be it, therefore, enacted: That every 
 Jesuit, and every member of any other religious order, or community, 
 or society of the Chvu:ch of Rome, bound by monastic or religious 
 vows, who, at the time of the commencement of this act, shall be 
 within the United Kingdom, shall, within six calendar months after 
 the commencement of this act, deliver to the clerk of the peace for the 
 county, or the place where such person shall reside, or to his deputy, 
 a notice or statement in the form, and containing the particulars re- 
 
APPENDIX. 347 
 
 quired to be set forth in the schedule to this act annexed. And if 
 such person shall not do same, he shall forfeit for every month he 
 resides within Her Majesty's dominions after the passing of this act, 
 the sum of £50". The master had received no evidence, as he ought 
 to have done, of the existence of the religious bodies mentioned in the 
 will of the testator; and secondly, of their having been in this country 
 at the time of passing the Catholic Relief Act, and of their having 
 complied with the provisions contained in that act for legalizing their 
 existence. There was no proof of any kind before the court, that all 
 or any of the monks at Mount Melleray, or at Shandon, had been in 
 this country previous to the passing of the act, and of their having 
 complied with its provisions; therefore, the court could not regard 
 them as parties to the cause in a legal sense. The 29th section of the 
 same act provided, " that if any Jesuit, religious order, or community, 
 or society, as aforesaid, should come into the realm after the passing 
 of that act, he should be deemed guilty of a misdemeanour, and on 
 being thereof lawfully convicted, should be sentenced and ordered to 
 be banished from the United Kingdom for the period of his natural 
 life". In other parts of the act, there were provisions for the admis- 
 sion of such persons into the United Kingdom, as, for instance, the 
 permission of one of Her Majesty's secretaries of state. But there 
 was no provision legalising their existence, much less to entitle them to 
 become devisees. The thirty- third section enacted," that if any Jesuit, 
 or member of any religious order, or community, or society, should, after 
 the passing of that act, admit any person to become a regular eccle- 
 siastic, brother, or member of any such order, community, or society, 
 or would aid or assist in administering any oath, vow, or engagement, 
 intended to bind the person taking same W the rules or orders of any 
 such society or community, every person so offending should be deemed 
 guilty of a misdemeanour, and be liable to pimishment for such offence". 
 It appeared manifestly from all these sections, that the legislature 
 , actually prohibited, in the most absolute manner, the very existence of 
 those religious bodies mentioned in the will of the testator, and to establish 
 whose bequests in their favour the sanction of the law was now sought. 
 As to the question of duration, it was clearly the duty of the master to 
 have found and reported the period for which these bequests were to 
 be paid, for the legacies might depend, in some respect, on that find- 
 ing. For example, the question to be decided might have been very 
 different from that now before the court, if it turned out that there 
 was a religious body in existence at the passing of the Catholic Relief 
 Act consisting of five or ten persons, and that they had remained in 
 the country ever since, and that they had complied with the provisions 
 
248 APPENDIX. 
 
 of the aet. Nothing whatever was found in the report, as to the time 
 the members of the monasteries of Mount Melleray or Shandon were 
 professed, or when they came into this country — nothing as to whether 
 they were natural born subjects, or, as to whether they had complied 
 with the requirernents of the law, and yet, in the absence of all testi- 
 mony or information on these matters, it was sought to obtain the 
 sanction of the law for these bequests in their favour. It, therefore, 
 appeared to him, that these findings of the master, independent of any 
 general question, that might be involved, were invalid. Such findings 
 ought not to have been made, unless the master had a case established 
 before him, showing the legal existence of these bodies in this country, 
 Even in the Charitable Bequests Act, 7 and 8 Vic, c. 97, s. 15, which 
 provided for charitable bequests for Catholic worship, etc., it was 
 stated, that no provision in that act should be construed to render 
 lawful any devise or bequest to any of the orders of the Church of 
 Rome prohibited by the 1 0th of George IV. Under all these circum- 
 stances, he considered, that it was utterly impossible to sustain the 
 report. 
 
 Mr. Deast, Q.C, said he appeared for the monks of Moimt Mel- 
 lery and Shandon, and he would submit to the court that there was 
 nothing in the present state of the law to invalidate the dispositions of 
 the testator. One of these dispositions provided for the payment of 
 £20 per annum by his executors to the monks of Shandon, near Dun- 
 garvan, in order to provide clothing for the poor children attending 
 their schools ; £20 a- year to the nuns of Dungarvan, to provide cloth- 
 ing for the children attending their schools ; £20 a-year to Michael 
 Cox during his life, and after his decease to be paid to the monks of 
 Mount Melleray, to be appropriated by them to improvement of the 
 chapel of Melleray, and the lands belonging thereto. There was a 
 second devise of £20 a-year to the monks of Shandon, for the purposes 
 aforesaid. The com-t would perceive that the testator had not pur- 
 ported by any of these devises to give a beneficial interest to any of 
 these bodies. The devises were to be apphed to certain purposes, 
 which he thought he would be able to satisfy his. lordship were within 
 the meaning of the terms " chaiitable purposes", as used in that court. 
 But even if the bequests were for the personal benefit of these parties, 
 and to be applied vpithout any control, he submitted there was nothing 
 in the state of the law to prevent them deriving the full benefit of such 
 bequests. He found in a case which arose before the passing of the 
 10th George IV, the Commissioners of Charitable Donations \. Walsh, 
 reported in the seventh Irish Equity Reports, p. 34, that a bequest of 
 £5 to the priory of Multifainham was held to be good. And that was 
 
APPENDIX. 249 
 
 done in a cause to which the Attorney-General, the Commissioners of 
 Charitable bequests, and the next of kin, were parties. Though no 
 exception was taken or question raised respecting it, nevertheless it 
 was included in the decree of the Lord Chancellor, and he could not 
 presume that the matter passed sub silentio. He was entitled to con- 
 sider that the then Lord Chancellor had certainly decreed it to be a 
 legal bequest. The Catholic Relief Act recognized the existence and 
 continuance of the religious communities in the country at that time, 
 at least for the lives of the then members, who complied with the pro- 
 visions of the statute. That statute had two objects in view ; the first 
 to legalize the existence in this country of members of religious orders, 
 and that in their character as members of such orders. Another ob- 
 ject was to prevent the introduction into the kingdom, or the creation 
 within the kingdom, of new members. For that purpose, the existing 
 members were required to furnish certain specified particulars to the 
 clerks of the peace, and the act imposed a penalty for a non-compli- 
 ance with these provisions. They were required to specify the name 
 of the community or society of which they were members, and the 
 name and residence of the next immediate prior or superior of the 
 order or society. It therefore seemed impossible to contend that the 
 legislature did not by that provision sanction the continuance of these 
 religious communities within the United Kingdom, at least during the 
 lives of the then members. If so, there was nothing to show that be- 
 quests to these persons, as members of these religious communities, 
 were contrary to the provisions of the statute ; or that they counter- 
 vailed the policy of the legislature. The object of the statute was not 
 to prevent the existence of religious communities, except by the intro- 
 duction of members from foreign parts, and the creation of members 
 within the kingdom, and, therefore, bequests of property to them, under 
 the general description of members of these religious communities, 
 might be perfectly valid. It was said that no sufl3.cient evidence had been 
 laid before the master to warrant him in finding that the communities 
 of Melleray and Shandon existed. The fact of the testator devising 
 property to them, as members of these particular religious communities, 
 was in itself sufficient evidence to wan-ant the master in his findings. If 
 the other side alleged any breach of the statute of Geo. IV, it was for 
 them to have relied upon such breach as a defence before the master, 
 and then, and not till then, would the parties claiming the benefit of 
 the bequest be bound to go into evidence to establish their existence. 
 It not being, in point of fact, disputed that they existed as religious 
 communities, the master could not but find as he did. In the absence 
 of any proof of a prosecution for penalties by the attorney-general, he 
 
250 APPENDIX. 
 
 should regard them as having a legal existence. It was not incum- 
 bent upon them, in the first instance, to prove that they had not been 
 guilty of an illegal act. In the present case the bequests were not to 
 these parties for their personal benefit, but as trustees for purposes 
 which, in the contemplation of that court, were charitable. And 
 that court, according to its settled established doctrines, would not 
 allow trusts to fail, because of the failure of the trustees. In support 
 of this proposition, the learned gentleman referred to the case of the 
 Attorney- General, v. Stephens, 3rd; Milne and Craig, 347, in which 
 the Master of the Rolls said the failure of the trustee would be sup- 
 plied by the com-t. In the case of the Attorney-General, v. the 
 Bishop of Oxford, -Sri Browne's Chancery Cases, the court, when it 
 could not give efiect to a bequest in the mode pointed out by the tes- 
 tator, did so in a difierent manner ; thus acting upon the doctrine 
 that the failure of a trustee could not prevent the operation of a trust, 
 particularly where the bequest was for charitable purposes ; that the 
 purposes in the present case were charitable could not be disputed. 
 One bequest was for the benefit of poor children attending the schools. 
 Another was for the support of the chapel at Melleray, which was 
 also perfectly legal. The learned gentleman also referred to a decision 
 of the present lord chancellor, when master of the rolls, in the case 
 of Greene, v. Hodgens, 7th Irish Equity Cases, p. 18, which involved 
 the validity of a bequest for masses. The 15th section of the 
 Charitable Bequests Act seemed to him to preclude all question as to 
 the charitable nature of these bequests. By that section lands could 
 be vested in the commissioners for building, enlarging, or upholding 
 chapels for the religious worship of Roman Catholics. This act left 
 the provisions of the 10th George IV, in full operation, but it imposed 
 no restrictions whatever upon religious communities, or upon persons 
 disposed to bequeath property in their favour. If these were bequests 
 for charitable purposes, he submitted that the court was bound, even 
 upon the worst view of the case, to .give them efifect, notwithstanding 
 that the persons named by the testator were disqualified from acting. 
 In the most extreme case, the attorney-general would be entitled to 
 claim these bequests, to be disposed of according as might be directed 
 by her Majesty's sign manual. As to the question of duration, he 
 would submit that these were perpetual annuities. One of them was 
 given, even after an express bequest, to a person for life, to a com- 
 munity that, in the opinion of the testator, was capable of a perpetual 
 existence, but which certainly was capable, according to law, of what 
 he might call an indefinite existence. Under all these circumstances, 
 he submitted that the exceptions were bad, and should be overruled. 
 
APPENDIX. 251 
 
 The lord chancellor asked the attorney-general if it was his in- 
 tention to interfere in the case on behalf of the crown ? 
 
 The attorney-general said he did not intend to interfere. 
 
 Mr. Fkancis Fitzgerald, Q. C. replied on behalf of the party 
 excepting. In the course of his address he said it was clear the 
 testator intended his bequest for the clothing of the boys attending the 
 school of the Shandon-Monastery to be perpetual; in which case the 
 Emancipation Act at once interfered, recognizing, as it did, only such 
 members as existed at the time of its passing, and who had complied 
 with its provisions. The bequest, therefore, could not at all be sus- 
 tained as perpetual. The object of the testator was to assist in keep- 
 ing up the schools perpetually, and this was doing what was contrary 
 to law. The learned gentleman then took up the principal position 
 laid down by Mr. Deasy, viz., that if the court was satisfied of the 
 general charitable intention of the testator, it shoidd see his intention 
 carried out by some legal mode, and proceeded to contend that the 
 bequests could not be taken as indicating a general charitable inten- 
 tion, particularly the bequests for the improvement of the chapel and 
 land attached to Mount Melleray. 
 
 The Lord Chancellor said, in giving his judgment, he had been con- 
 sidering the questions raised in the above case, as to the validity of 
 certain bequests to the monks of Shandon and Mount Melleray, county 
 Waterford, by the late Mr. Keatinge, of Dungarvan. It appeared to 
 him that the bequest to the monks of Shandon monastery was a valid 
 bequest, inasmuch as it was for a good charitable purpose — namely, 
 the clothing and feeding of the poor children of the school attached to 
 the monastery. It also appeared to him that the monks, who might 
 have been members of the community of the Shandon monastery, at 
 the time of the passing of the Roman Catholic Relief Act, would be 
 proper and eligible trustees to administer the trust under the will of 
 Mr. Keatinge ; but there could be no succession to them ; and, there- 
 fore, after their demise the trust should be administered under the 
 direction of that court for the benefit of the children attending the 
 schools ; and it would become necessary for the master to settle and 
 prepare a scheme for such purpose. With respect to the gift to the 
 monks of Mount Melleray, to be applied for the improvement of the 
 chapel and land attached to the monastery, his lordship said there 
 appeared to be a great difficulty in the way of sustaining that bequest, 
 as he did not think he could regard it as a gift for a general charitaTsle 
 purpose, but should consider it as a bequest for the benefit of the 
 monks themselves. Under these circumstances the impression then 
 upon his mind was, that the bequest was void and inoperative. If 
 
253 APPKNDIX. 
 
 the learned counsel on behalf of the monks of Mount Melleray thought 
 that they could supply any additional argument or authority in sup- 
 port of the bequest, the Court would be quite -willing to hear them 
 any morning they might think it well to mention the matter. The 
 Court would still reserve its judgment upon the questions which had 
 been raised ; and, in the meantime, he would wish to be furnished 
 with a copy of the Master's report for consideration. 
 
 The LoKD Chancellok ultimately delivered judgment in the above 
 case. He said — in the will of the late Richard Keatinge, amongst 
 others, there are two bequests of annuities to the monks of the 
 Monastery of Shandon ; the first to provide clothing for the poor 
 children attending their schools, and the second the reversion of an 
 annuity, on the death of Mr. R. Cox, for the same purpose. The 
 Master had found that James F. Broderick, a defendant in the case, 
 was the principal of the monks of Shandon, and it had been objected 
 on the part of the residuary legatee, that the Court could not give 
 eifect to these bequests to monks, nor recognise them as having schools, 
 and therefore, should declare the bequest altogether void. The 
 authority in 2nd Brown's Chancery cases referred to in support of this 
 proposition, did not appear to govern the case before the Court. In 
 his report the Master had found Mr. Broderick to be the principal of 
 the monks at Shandon, and had inferred that he was known to the 
 testator to be the principal officer or member of this community. He 
 (the Lord Chancellor) thought that Mr. Broderick was entitled to be 
 considered as the person, or one of the persons, described by the 
 testator, and consequently that the schools managed by him, or by 
 this community, were the schools in the contemplation of the testator. 
 He, therefore, saw no difficulty in directing the payment to Mr. 
 Broderick, or any of the Shandon community, of the annuity 
 for the charitable purpose intended by the testator. Who these 
 other members were, and whether now living, the Master should 
 make a matter of inquiry. As soon, however, as these persons 
 died, there would be no one to administer the trust, and there would 
 be no longer a school answering the description in the wiU, or indi- 
 cating the general charitable intention. There could be no doubt but 
 the poor children of the district attending the schools in question were 
 intended by the testator to be the permanent recipients of his bounty; 
 therefore, the circumstances of the school ceasing to answer the de- 
 scription given in the will would be no reason for refusing to effectuate 
 the charitable purpose of the testator. For this there was abundant 
 authority. His lordship then referred to the case of the Incorporated 
 Society v. Price, 7th Irish Equity Reports, which, he said, though it 
 
APPENDIX. 253 
 
 did not bear directly upon the present case, yet fully established the 
 principle he had laid down. It would, therefore, be for the Master to 
 ascertain who were the individuals described as the " monks of 
 Shandon" at the time of the death of the testator, and to them the 
 Court would direct the payment of the annuity for the purpose speci- 
 fied. He would also refer it to the Master to prepare a scheme for 
 the administration of the charity, such scheme to take effect upon the 
 death of the last survivor of the monks who were members of the 
 community at the time of the testator. The next question in the case 
 related to the payment to the monks of Mount Melleray of the bequest 
 of 201. per annum for the improvement of the chapel and land attached 
 to the aforesaid monastery. The finding of the Master with respect 
 to this bequest was, that the Rev. Mr. Ryan, the successor of the 
 Very Rev. Michael Vincent Ryan, deceased, was the present abbot 
 and principal of the monks of Mount Melleray. From this it was to 
 be inferred, that since the death of the testator, the then abbot of 
 Melleray, Michael Vincent Ryan, had died. He (the Lord Chancellor) 
 could not recognise any right in the deceased abbot's successor; 
 neither could he discover any general charitable purpose in the 
 bequest, which would authorise him to direct the preparation of a 
 scheme for the administration of the trust. The particular object of 
 the bequest was the improvement of the chapel and land belonging to 
 Mount Melleray, and as it did not answer the description of a general 
 charitable purpose, the residuary legatee should take the bequest.* 
 
 * Chancery has, in this instance, been but a too faithful expounder of the 
 bills of its creator and sovereign lord, the Parliament. But what is the 
 result 1 Here is a bequest to an object as deserving as any the sun shines 
 upon ; we do not say as deserving merely in the sight of God, but in the 
 sight of any statesmanship that is not altogether blind or wicked. A bequest 
 to a body of men who (their value in a spiritual sense altogether apart) have 
 been the best agents of civilization in the locality where they lived, labo- 
 riously tilling the barren mountain sides, teaching the children of the poor, 
 inculcating by precept and example all the virtues which make good men 
 and valuable citizens. The state, for its own sake, should be glad and proud 
 to encourage such men ; the law, if it seeks to rest itself on any higher 
 sanction than brute force, should joyfully accept, facilitate, and smooth the 
 way for their support and endowment. Yet it is these men, and all others 
 bound, like them, by vow to similar duties of beneficence and self-denial, 
 whom the law in Ireland proscribes at this day, and places gifts to them on 
 a level with this tribe of immoral and flagitious uses, which the law of every 
 civilized country invalidates. And this, let us remember, is no relic of penal 
 barbarity— no half-obsolete legacy of the days of William, or Elizabeth, or 
 Edward. It is the deliberate enactment of " the great healing measure" — 
 our supreme boast and conquest — the Act of Catholic Emancipation. 
 
 The direct express provisions of that act for transporting and imprisoning, 
 for extinguishing and suppressing all monks and friars in the kingdom, were 
 so outrageously tyrannical and unjust — were, in short, so infernal — that no 
 government has been found daring enough to suggest their execution. But 
 
254 APPENDIX. 
 
 RECENT CASES IN THE ENGLISH COURTS UPON THE ACT OF 
 
 GEORGE II. 
 
 Befoee thjb Mastee of the RoLis. — In re Clanct. 
 Trinity Term, 1852. 
 
 In the matter of the Act for securing trust funds, and for the relief 
 of trustees ; in the matter of the two trust legacies of £500, three-and- 
 a-quarter per cent, annuities, each bequeathed by the will of the late 
 John Clancy ; and in the matter of the act for providing summary 
 remedy in case of abuse of trust created for charitable purposes. — 
 
 the law, it should be always remembered, has two strokes in it — a right- 
 handed and a left-handed one ; if its right hand be tied up from directly 
 iprostrating its enemy, it has still the left free to plunder, embarrass, and 
 obstruct him. So has it fared with monasteries in Ireland. The law does 
 not venture to deport or send to gaol the good monks of Melleray, but it can 
 put its hand into their pocket and rob them of the poor twenty pounds a-year 
 which piety and justice bestowed for the improvement of their chapel and 
 lands. 
 
 Again, our readers remember that in the first Whig draft of the Ecclesi- 
 astical Titles Bill, there were clauses of the most stringent kind, rendering 
 any gift or bequest to the Roman Catholic bishop of any diocese, under any 
 designation whatsoever, or any bequest for any diocesan purpose, null and 
 void, and that when, upon the remonstrance (as was averred') of Archbishop 
 Murray, these clauses were struck out, the ablest lawyers in England gave 
 it as their opinion that the same result precisely flowed from the bill in its 
 amended form, and that it needed no express enactment to render void a gift 
 bestowed in support of that which the law forbade. For that position, if it 
 needed authority, Carberry v. Cox is an express one. And we may take it 
 now as settled, that all gifts and bequests to the Catholic bishop of any dio- 
 cese, or dean of any deanery, by that name, or for any purpose recognizing 
 the existence of, and in connexion with, any such "pretended" diocese or 
 deanery, will be held void. 
 
 Add to these the devises expressly invalidated by the Bequests Act, and 
 they form an admirable specimen of the healing legislation of later times. 
 For we must repeat and repeat again, that all this peril and incalculable 
 embarrassment in which Catholic charities are so netted and involved, is the 
 work of one generation. If it were not for the acts of '29, '44, and '51, there 
 would be no peculiar impedimenta in the way of our charitable donations 
 beyond those of the Presbyterians or other dissenters. We have confined 
 ourselves as much as possible to an exposition of the state of the case, leav- 
 ing our readers to draw their own conclusions as to whether it is endurable. 
 Of course we, Catholics, have no right to live in this island as Catholics — we 
 have no right to have monasteries or friaries, to glorify God or do good to 
 man, except by stealth, and evasion, and in contradiction of law. So have 
 the Protestant Parliament and people of England settled it, and we accept 
 it all as perfectly natural. And contemptible and disgraceful as it is for the 
 English government to be for ever enacting tyranny which it dare not exe- 
 cute, and achieving instead paltry, vexatious, and petty robbery, far deeper 
 is the disgrace upon ourselves, that our own corruption, and selfishness, and 
 slavishness, have rendered these things possible. — Tablet. 
 
APPKNDIX. 255 
 
 This was a petition of the Hev. John Ringrose, a Roman Catholic 
 clergyman, of Reading, and another Roman Catholic, Francis Dearlove, 
 also of Reading. They st?!ted that the testator, John Clancy, late of 
 Reading, formerly broker, in Little Turnstile, disposed of a large por- 
 tion of his property by will to charitable purposes, and dying, left the 
 petitioners trustees of his will, bequeathing to the Catholic bishop for 
 the time being of the London district, £500, three-and-a-quarter per 
 cent, annuities, and £400 like annuities, payable on the death of his 
 wife, Jane Clancy, upon trust to be applied by them for the establish- 
 ment of a charity school for the poor Catholic children in Reading. 
 Also £500, three-and-a-quarter per cent, annuities, and £300 like an- 
 nuities, upon the death of his wife, Jane Clancy, for the formation of 
 a society for the relief of the aged, infirm, or distressed poor Catholics 
 of Reading, or attached to the Reading district, expressing by his 
 will his wish that these four legacies should be transferred to the 
 said executors, and remain in the said public funds, until arrange- 
 ments were made for the formation of the said school and society as 
 aforesaid. And after a bequest to the Berkshire hospital, and another 
 to the dispensary, he bequeathed the residue of his personal pro- 
 perty equally to the trustees of the school and society before men- 
 tioned. The testator died on the 10th of May last. The petitioners 
 stated that the London Catholic district mentioned in the testator's 
 will has, since the time when the will was made, been subdivided, 
 and the office of that portion of the said district in which Reading 
 is, has been exercised by the Right Rev. Thomas Grant, of Bishop's 
 House, Southwark ; and the petitioners submitted that the said Dr. 
 Grant was, therefore, the right person to be appointed to be a 
 trustee jointly with the Rev. John Ringrose, and also that said Dr. 
 Grant is willing to become trustee. There had arisen doubts in the 
 trustees' minds as to the validity of the bequest for establishing a Ca- 
 tholic charity school, which brought them to the course of petitioning 
 the Lord Chancellor, that these several legacies now standing to the 
 account of testator's estate, in the name of the Accountant-General, 
 may, upon Dr. Thomas Grant being constituted such trustee, be trans- 
 ferred to the petitioners, John Ringrose, and Dr. Thomas Grant, 
 before-mentioned, as Roman Catholic bishop of the subdivision of 
 London district, comprising Berkshire. All parties interested were 
 •willing to agree to the prayer of the petition, as soon as the shares of 
 the school and society for poor Catholics should be ascertained, and 
 the petitioners prayed the Lord Chancellor that he would give such 
 directions as to him seemed proper, to carry out the charitable inten- 
 tions of the testator in regard to these two charitable institutions. 
 
256 APPENDIX. 
 
 Mr. F. HiNDE Palmek supported the prayer of the petition, and 
 Dr. Thomas Grant's interest. He anticipated no difficulty would 
 arise in carrying out these trusts, which did not come within the 
 statutes of Mortmain ; he maintained that with respect to the school, 
 the single question, whether to execute the expressed purpose of the 
 testator, land must be purchased for erecting a school. The testator 
 had directed only that a proper school-house should be provided, 
 which might be by hire of premises for the purpose. See " Sir John 
 Leach's judgment", 3 Madock's Reports, page 467. 
 
 Mr. FoLLEXT and the Aitobney-Genekal, on the other side, were 
 heard for the residuary legatees' interest and the Crown. 
 
 The Mastek op the Rolls said, the object of the trust under the 
 devise of the testator was to provide and establish, by means of his 
 trustees, a school and a society, and this appeared to him to require, 
 as the sole means of carrying out the testaT;or's object, that the testator 
 should be empowered to purchase land for that purpose. This brought 
 the case within the operation of the statutes of mortmain, which had 
 in contemplation such purchase and appropriation of land for purposes 
 of this nature. With respect to the other subjects of the petition,, 
 they must be ordered as prayed. 
 
 LOUDON CENTRAL CRIMINAL COITRI, 1863. 
 
 Dr. Jabez Burns, a Baptist minister, surrendered to take his trial 
 upon an indictment charging him with wilful and corrupt perjury. 
 
 Mr. Parry and Mr. Metcalf conducted the prosecution: Mr. Ballan- 
 tine and Mr. Hall were counsel for the defendant. 
 
 The learned counsel for the prosecution, in opening the case to the 
 jury, said it was one of considerable importance, not only from the 
 serious nature of the charge itself, but the position of the gentleman 
 against whom it was made. The defendant was the minister of a bap- 
 tist congregation in Marylebone, and he officiated at a place of worship 
 called Enon Chapel, and the present indictment imputed to him the 
 commission of wilful and corrupt perjury, under very peculiar circum- 
 stances, the nature of which he would briefly state to them. It ap- 
 peared that a Mr. Thomas Gwennap had been, for a great many years, 
 a member of Dr. Burns's congregation, and was much respected in 
 that capacity. He was a man possessed of some considerable pro- 
 perty, the whole of which had passed into the possession of the de- 
 fendant for the benefit of his chapel, and the charities connected with 
 
APPENDIX. 257 
 
 it. This gentleman died in November 1850, and it was then ascer- 
 tained that, in January 1839, he had executed a deed of gift, by which 
 he charged a portion of his estate with the payment of a sum of £96 
 per annum for the benefit of the chapel of the defendant, and other 
 charitable purposes connected with his ministry, and the defendant 
 and one of the elders of the congregation, named Makin, were ap- 
 pointed the trustees for carrying out the intentions of the donor. The 
 learned counsel explained, that by the law of mortmain, in order to 
 give validity to such an instrument as the one in question, it was ne- 
 cessary that the deed of gift should be executed at least a twelvemonth 
 before the death of the party making the gift, and also that the gift 
 should be absolute, and pass immediately to the parties on whose be- 
 half the deed was made, the object of the statute being to prevent pro- 
 perty from being improperly alienated from the lawful heirs of a de- 
 ceased party through any religious influence. When the relatives of 
 the deceased became aware of the existence of this deed of gift, they 
 filed a bill in Chancery with the view of doing away with it, the ground 
 upon which this proceeding was taken being, that the instrument was 
 executed in fraud of the law of mortmain, inasmuch as it was never 
 intended by the defendant, or Mr. Gwennap, that the annuity should 
 pass at once to the defendant's chapel, but that a secret agreement was 
 made between them, that the deed should not be enforced until after 
 the death of Mr. Gwennap. The residt of this appeal to the Court of 
 Chancery was, that the defendant was called upon to answer certain 
 interrogatories, and among others, one to ascertain whether any agree- 
 ment was really made between him and the deceased that the provisions 
 of the deed should not be enforced untU. after Mr. Gwennap's death. 
 To this interrogatory the defendant answered, by declaring that no 
 such agreement was ever made; and it was upon this statement that 
 the present indictment for perjury was founded. The learned counsel 
 then stated the nature of the evidence he should produce to show that 
 the defendant was well aware, at the time he made this statement, that 
 it was perfectly understood between him and Mr. Gwennap that the 
 deed was not to be made available until after the death of the latter, 
 and he said, that if he established this fact to the satisfaction of the 
 jury, however painful it might be to them, taking into consideration 
 the position of the defendant, it would be their duty to say that he 
 was guUty of the serious charge made against him. 
 
 An officer of the Court of Chancery produced the several documents, 
 which were read by Mr. Straight. The defendant appeared to have 
 sworn positively, that neither at the time the deed of gift was exe- 
 cuted, or at any other, any agreement or arrangement existed between 
 
258 APPENDIX. 
 
 him and his co-trustee and the testator, that the deed was not to be 
 carried into effect until after the death of Mr. Gwennap ; but it ap- 
 peared, that he stated at the same time that, in consequence of the 
 liberality of Mr. Gwennap to the ministry in question, and the chari- 
 ties belonging to it, the trustees never intended to enforce the deed 
 until that event took place. 
 
 Mr. East, one of the deacons of the chapel, deposed that in 1843, 
 in consequence of the death of Mr. Makin, he became a trustee to the 
 deed in question with the defendant. On the 20th of December 1847, 
 he went by appointment to Mr. Gwennap's house, and met the de- 
 fendant there, and they both signed the following document: — 
 
 " Whereas we, the undersigned, being the legally appointed trustees and 
 executors of certain bequests and annuities left to Enon Chapel, and bene- 
 volent institutions connected therewith, do declare and affirm that we are 
 fully aware that Mr. Thomas Gwennap bequeathed the said annuities by 
 bond or gift in January 1839, to meet the legal difficulties arising from the 
 law of mortmain, but desiring that the said annuities should not be paid till 
 after his decease. And furthermore, in lieu of these, he has, during his life, 
 contributed to the aforesaid charities liberally. Therefore, we do hereby 
 declare that we could not, in justice, demand any of the annuities until it 
 shall please Divine Providence to remove by death Mr. Thomas Gwennap. 
 And in proof of our purpose and intention, and for the satisfaction of Mr. 
 Gwennap and his heirs, we do attach our names to this document, which we 
 wish to be an entire discharge of all claims on said bond up to this date, 
 and also engage to renew the same discharge every half year during the 
 life of Mr. Thomas Gwennap." 
 
 Cross-examined. — He had known the defendant thirteen years, aiid 
 he bore a very high character. The defendant would be entitled to 
 receive £40 a-year under the deed, providing his stipend as minister 
 of the chapel did not^mount to £150 a-year, but he had never, in point 
 of fact, received a single farthing under the deed. The charge against 
 the defendant was investigated before Mr. Jardine at Bow-street, and 
 he dismissed it. Mr. Bishop, who married one of the daughtets of 
 Mr. Gwennap, appeared as prosecutor on that occasion, and was ex- 
 amined as a witness. The charge was dismissed by the magistrate 
 without the defendant being called upon to give any evidence. Before 
 the investigation at Bow-street, witness had forgotten having signed 
 the document that had just been read, and it was recalled to his me- 
 mory by the defendant. He believed, that the paper in question was 
 drawn up at the suggestion of Mr. Bishop, and upon his representa- 
 tion, that unless something of the sort was done, the estate might be 
 called upon to pay the annuity. The deceased gentleman was a man 
 of very strong mind. He was very liberal to the chapel, and he gave 
 them a larger amount every year he lived than the sum that was re- 
 served by the deed. 
 
APPENDIX. 259 
 
 By Mr. Parry. — He was certainly aware that the annuity was not 
 to be paid until after Mr. Qwennap's death, and he knew that the de- 
 ceased always understood that the deed was not to be carried out until 
 he was dead. When the deed was executed, in 1839, Mr. Gwennap 
 was very iU, and believed that he could not live long. He remem- 
 bered a check for £1,045, signed by the deceased, being shown to the 
 elders of the chapel in 1850 by the defendant, but he did not recol- 
 lect what he said exactly, but his object was to show, that the check 
 had been sent to the chapel by the deceased. This check was never 
 made use of. 
 
 Miss Jane Gwennap deposed that she was the daughter of .the de- 
 ceased, and one of the parties to the Chancery suit to do away with 
 the deed in question. Her father was eighty-six years old when he 
 died. She knew the defendant as the minister of Enon Chapel, and 
 he was in the habit of visiting at their house constantly. At the time 
 the deed was executed, 1839, she remembered hearing her father and 
 the defendant have some conversation respecting it, and she heard her 
 father say to the defendant that the money would not be payable until 
 his death. The defendant was left executor of her father's will, and 
 he had now the entire control of his property, which by the probate 
 appeeired to have been sworn to be under £6,000 in amount. In 
 June 1850, the defendant dined with them, and after dinner he asked 
 her father to give him a check for £1,045, and her father observed 
 to the defendant, that he supposed he had been taking some advice, 
 and he said that he had, and he dictated the terms of the check, which 
 was supposed to be given for the arrears of the annuity of £95 up to 
 that period. It was understood, that the check was to be shown at a 
 meeting at the chapel in the evening, and that then it was to be re- 
 turned, and that it was given merely as a matter of form. In the 
 evening, the check was brought again to their house by the defend- 
 ant, and he told her she might either keep it or destroy it as she 
 pleased. She locked up the check, and after her father's death the 
 defendant asked her for it, and she gave it to him. When her father 
 signed the check, he told the defendant there was not enough money 
 at the banker's to pay it. Witness was a member of the defendant's 
 congregation for many years, but she was expelled after these proceed- 
 ings, and her books were sent to her from the chapel. 
 
 The witness was cross-examined at some length by Mr. Ballaniine 
 upon matters of a personal character, which it is not necessary further 
 to allude to, with the view of showing that there were reasons which 
 justified the defendant in acting in the manner represented towards 
 her. It also appeared that the defendant had written two letters to 
 
260 APPENDIX. 
 
 the witness, in which he threatened to prosecute her, if she did not 
 state publicly that there was no truth in the reports that she had cir- 
 culated that he had used improper influence with her father to induce 
 him to make the bequest to the chapel ; and that he had advised and 
 arranged with him to make the bequest in a form so as to evade the 
 law. 
 
 A clerk from Messrs. Drummonds' was called to prove that at the 
 time the check for £1,045 was given by the deceased, there was only 
 a sum of £175 standing to his credit at the bank, and this closed the 
 case for the prosecution. 
 
 Mr. Bailantine then made a most earnest and energetic address 
 to the jury on behalf of the defendant. He admitted that the case 
 was one of very great importance, but he said he felt confident that 
 when the jury looked at aU the facts, they would at once be of opinion 
 that there was not the slighest foundation for the present charge, and 
 that they would, by their verdict, restore the gentleman who now 
 stood before them as the defendant to that position among his own 
 friends which his conduct up to this period entitled him to stand in, 
 and that his character would not be at all affected bythe share he had 
 taken in this transaction. He then called the attention of the jury to 
 the law of mortmain, and said, that before they would be justified in 
 coming to the conclusion that the defendant gave a false answer to the 
 interrogatory upon the subject of the deed, they must be satisfied that 
 at the time the deed was executed a secret agreement was entered 
 into, in contravention of the law, that the deed was not to be enforced 
 until after the death of Mr. Gwennap ; and he submitted that there 
 was not one tittle of evidence to support such a conjecture. That the 
 trustees, out of consideration for the donor, might afterwards have 
 declined to enforce the deed, was very probable ; but they had a right 
 to do so if they pleased, and it would not in any way affect the validity 
 of the deed of gift. With regard to the conduct of the donor in alien- 
 ating the property from his own family, they had nothing to do with 
 that matter. Many men had thought it right to give a portion of their 
 property for good and charitable purposes, and the law, under certain 
 restrictions, allowed them to do so ; but, undoxibtedly, such a pro- 
 ceeding was calculated to give grave offence to those relatives who 
 were deprived of that property, and he contended that the present 
 prosecution had been instituted solely out of a vindictive feeling on 
 the part of the relatives of the deceased. The learned counsel then 
 reminded the jury that this charge had already been investigated by a 
 most learned and intelligent magistrate, who, after hearing all the 
 facts, had dismissed the case ; and he said that the parties who pro- 
 
APPENDIX. 261 
 
 tuoted the prosecution, not content with this, had then gone behind 
 the back of the defendant and preferred the present indictment before 
 the grand jury, evidently for the purpose of gratifying a revengeful 
 feeling, and in the hope of destroying the character of the defendant. 
 A great number of highly respectable witnesses were called to speak 
 to the defendant's character. 
 
 The Recosder summed up the case with great clearness and 
 impartiality, and 
 
 The jury, after deliberating for a short time in the box, expressed a 
 wish to retire. They returned into court in about a quarter of an 
 hour, and gave a verdict of " Not Guilty." 
 
 Mr. Metcai.p applied for the expenses of the prosecution. 
 
 The Recokder said he must consider a little before he granted the 
 application. The charge had been investigated by a magistrate, and 
 dismissed, and after this the parties chose to go before the grand jury 
 of their own accord, and he doubted, under these circumstances, 
 whether he should be justified in allowing the expenses. — Times.* 
 
 * The Tdegraph, copying the above, said : — " We transcribe this report 
 for the information of our readers ; introducing it with this single observation, 
 that somehow or other it happens that amidst all the cases of Catholic wills 
 brought forward before the Mortmain Committee, not one occurred in which 
 children or wife, or such near relatives, were left unprovided for ; but that 
 — even although there was no endeavour made to bringforward any Protestant 
 cases — some incidentally transpired ; and in these it appeared, that it had 
 often occurred that even children were left utterly unprovided for. Now this 
 is remarkably illustrated in the report we have referred to. For it there 
 appears that, an old man of the " Baptist persuasion", at the age of nearly 
 ninety, left all his property to the parson or preacher of the chapel he fre- 
 quented, to the utter dispossession of his family. Oh, what an uproar would 
 have been made about this, had it been a Catholic priest concerned ! How 
 all England would have rung with it ! If the Committee had been sitting, 
 how they would have sifted it ! How sharply they would have searched 
 into it ! How severe the ordeal t}x& priest would have passed through ! The 
 preacher, however, escapes unscathed, except by the natural indignation of 
 disappointed relatives ; and the indictment for perjury that indignation led 
 to ; and on which he was at once acquitted. Would any Protestant com- 
 mittee allow one of the relatives, after that verdict, to come forward, and, 
 unsworn, again impute to this parson the perjury of which he had been ac- 
 quitted 1 Yet that was what the late unscrupulous Committee did allow to 
 be done in several cases in which priests were implicated. In the present 
 case, so far from there being any outcry against the man, the sympathy 
 seems to be with him. What a contrast to the case of CarbS, with which, 
 about this time last year, all England rang ! He had no family, no near re- 
 lations, none nearer in blood than a tenth cousin, nor nearer in distance than 
 France ; yet he left ^3,000 to that distant connexion, and about twice as 
 much to the chapel he attended. This was exclaimed against as infamous, 
 for a priest was a party to that wUl. Here is a case of a man leaving all his 
 property away from his own children, and nothing is thought of it, for it is 
 a Vioteata^t preacher who profits by it! Can anything more clearly display 
 the blindness of bigotry and prejudice ? But it shows more; it shows the 
 
263 APPENDIX. 
 
 THE LAW OF MORTMAIN. 
 raoM THE " tablet". 
 
 The Committee of the House of Commons, to which was entrusted 
 the work of investigating the non-operativeness of the principle of the 
 law of Mortmain, has made a report which is highly satisfactory to 
 the mere men of the world. That report is understood as a hlow 
 against Catholicism, and as a general condemnation of the Catholic 
 priest, as such. The priest, in the Protestant sense, is a poor and 
 mean-spirited wretch — except at general elections — who prowls about 
 the beds of dying men, and filches the substance of heirs at law. He 
 lives, it is true, in poverty, but for all this, he makes wills, and re- 
 ceives large legacies. People die every day and leave their estates to 
 priests, .who, nevertheless, continue in poverty, and never assume 
 courage enough to buy a carriage, or hire even a footman. This is 
 one of the miysteries of priestcraft. 
 
 Land cannot be the subject of a charitable bequest, but it may be 
 given to a spendthrift and a stranger, to the prejudice of families, 
 friends, and heirs at law. It may not be given for any good purpose, 
 but it may be given to the most worthless man, either in fee-simple, 
 or for his life. The legatee may spend it in vice, gamble with it, or 
 send the produce to a foreigner. He may do what he likes with it ; 
 but it may not be given to maintain the poor, nor as a site for a 
 church. 
 
 Personal property, such as money in the funds or at the bankers, 
 is not at present liable to this restriction. A testator may dispose of 
 this as he pleases. But modern economists are troubled at this in- 
 equality in the law, land they are anxious to subject personal property 
 
 superiority of the Catholic religion. We point with pride to every Catholic 
 will brought forward, as a proof of the goodness of the moral theology taught 
 by the Church, for those wiUs all prove that Catholic testators understand 
 thsiix first duty is restitution ; their second, due provision for their relations ; 
 the thirdf proper liability for charitable and pious purposes. Whereas, 
 Protestant evidence reluctantly and incidentally discloses, that it is quite 
 common among Protestant testators to leave all their property, with utter 
 disregard either of duties of restitution or family provision, to some charity, 
 not for the sake of charity, but, as the witnesses expressed it, from mere mo- 
 tives of vanity, to give their names to some fund or edifice, often disinherit- 
 ing their children for the miserable gratification of that most miserable feel- 
 ing, death-bed vanity. We repeat, not a single soUtary instance of such a 
 case of this kind has been adduced amidst all that were ransacked in the re- 
 searches, and prompted by the most bitter hatred of the Catholic priesthood ; 
 not one Catholic case can be found at aU like that which we refer to in the 
 newspaper report. This is a result the Committee did not contemplate. 
 •They meant of evil, but Providence hath turned it to good'." 
 
APPENDIX. 363 
 
 to the restraints wtich encumber realty. If they succeed in this, 
 they will obtain the benedictions of the wicked, and profligates will be 
 grateful to them for their work. The poor and the necessitous have 
 the workhouse and the prison before them, and these places are more 
 deserving of public support than almshouses and hospitals ; convents 
 and monasteries are of course pure abominations, which no enlightened 
 government can tolerate, if it can suppress them. 
 
 The modern successors of Cardinal Langton have but one special 
 object in view ; but as privUeges and burthens are odious in them- 
 selves, they are obliged to enunciate a general principle, in order to 
 effectuate a special end. These excellent individuals hate the Church 
 and her ministers, but have not the courage to say that legacies to 
 Catholics, as such, shall be void. They proscribe, therefore, charity 
 in general, in order to restrain its particular exercise. But as recent 
 events have not tended to give us a favourable view of their proceed- 
 ings, they are now disposed to give us a little protection, provided we 
 give aU publicity to our charitable arrangements. If we shall be fools 
 enough to do this, no doubt, when the time shall have come, they 
 will be ready to allow us to begin again, by robbing us of all we 
 possess. 
 
 Secret trusts may be an evil, but they are not sins. They are un- 
 avoidable under the English government. They are happily beyond 
 the reach of lawyers and of law, and will continue so long as the ne- 
 cessity for them exists. The Committee proposes to abolish the doc- 
 trine of "superstitious uses", as it stands defined at present, but it 
 also proposes that it shall be established on another basis. This may 
 be a gain, or it may be a loss. At any rate we must be prepared ; 
 and so long as there shall be lawyers who, for their fee, will help us 
 to evade the law, so long, of course, we shall be able to do so. It 
 wiU be a duty so to act, for a Cottenham or a Campbell may co-exist 
 with the British constitution in Church and State. 
 
 " To allow a man", says the Times, "to dispose of his property 
 for the benefit of his soul, and bribe the powers of the next world with 
 that which he is unable any longer to enjoy in this, is a transaction 
 too full of selfishness on one side, and imposture on the other, to be 
 tolerated in any well- governed country." 
 
 The unconscious infidel who wrote this may, or may not, become a 
 judge ; and whether he does become one or not, matters but little, for 
 he is not alone in his opinion. Others there are sufiiciently numerous 
 to annoy us, and against whose machinations we are bound to be on 
 our guard. With a Catholic it is a duty to dispose of his property, 
 both in life and on the point of death, " for the benefit of his soul" ; 
 
264 APPENDIX. 
 
 for to him " the powers of the next world" are also the "powers" 
 which he must propitiate, or "brihe", as the infidel has it, in this. 
 If, then, a well-governed country cannot tolerate such a practice, we 
 must evade the laws, and save our souls at the expense of our bodies. 
 We must give up the notion of being good subjects or citizens, in 
 order to become good Christians, which is, in truth, a matter of more 
 consequence. 
 
 Parliament may pass laws against charitable bequests ; but its laws 
 will not hurt us, provided they are sufficiently oppressive. What we 
 have to fear is apparent civility, and the pretence of doing us a ser- 
 vice. Laws that invite us to declare trusts, and which promise 
 security, are far more to be dreaded than the most stringent prohibi- 
 tions. Against the former we have no weapons, but against the latter 
 we shall be proof. A guasi recognition of Catholic trusts will end in' 
 confiscation, but a complete proscription of them will be a fountain 
 from which they will spring forth, and out of which we shall maintain 
 schools, priests, masses, and all other " superstitious uses", which the 
 infidels so impotently hate. 
 
 SUPERIOR ADVANTAGES OF, THE RELIGIOUS ORDERS. 
 Letteb to the Editok op the " Tabiet." 
 
 Grove-end, St. John's Wood, London. 
 June 15th, 1852. 
 
 Mt deak Sik,-^As it is vitally important for us that our very 
 limited charitable finances should be applied most efficiently to their 
 respective objects, the following statement on economy in the education 
 of the poor, must prove interesting and instructive to the readers of 
 your valuable journal. 
 
 In May 1848, as it was clear that a great evil existed, we deter- 
 mined to apply to it the most efficacious remedy, by the erection of 
 St. Edward's Convent of Mercy and Poor Schools in Blandford-square, 
 situated in the centre of the parish. Here we have ample accommo- 
 dation for thirty nuns, and 1,000 poor female children. The cost of 
 ;these erections is £9,000. For this outlay a permanent provision is 
 made for the education of 1,000 poor children, under the fostering 
 care of a religious community of ladies, who not only provide means 
 for their own support, but also have subscribed thq sum of £2,000 
 towards the erections. 
 
 But, under a system of lay or secular education, our charitable 
 
APPENDIX. 265 
 
 finances are burthened, not only with, the erections, hut also with the 
 support of the teachers in the schools; so that the erection of such 
 schooh'ooms as the above, for the accommodation of 1,000 children, 
 will cost £3,500. This number of children will require at least eight 
 teachers, allowing 125 children to each. The erection of suitable 
 lesidences for these teachers will cost not less than £2,000 ; the 
 salaries of the teachers will average at least £35 each per annum. This 
 will be an expenditure of £280 in wages alone per annum. The in- 
 vestment of money at the present rate (three per cent, interest), will 
 require a sum of £9,333 6 : 8 to realise an annual interest of £280. 
 So that the general outlay for the permanent establishment would 
 stand thus : — 
 
 For the erection of the schools 
 
 „ Teachers' residence 
 Endowment fund for wagea .... 
 
 Whereas the expenses under a religious community is 
 
 Difference ..... 
 
 But in the case of Blandford-square, where the ladies have 
 
 contributed towards the erections 
 Which reduces the burthen on the public charity from 
 
 To 
 
 Compared with the above ..... 
 
 Leaves in favour of the Nuns . . .£7,833 6 8 
 
 Or less than half the expenses necessary for education by secular 
 teachers. 
 
 In addition to these important pecuiiiary advantages, we have 
 secured to our sick and poor, of every age and sex, the inestimable 
 blessing of the tender care of these angelic dispensers of the choicest 
 blessings of God, both corporal and spiritual. Clothing the naked, 
 feeding the hungry, instructing the ignorant, soothing the sorrowful, 
 and comforting the afflicted. 
 
 We regret to have to state that a debt of more than £2,000 stiU 
 remains on the buUding account of this noble institution. 
 
 We have commenced the excavations for the erection of the House 
 of Mercy for the reception of sixty poor servants of good character, out 
 of employment. The munificent donation of one bountiful benefactor 
 will nearly cover the whole outlay on this new erection ; but this do- 
 nation does not in any way affect the above-named debt on the 
 existing erections. 
 
 We earnestly invite those charitable souls whom a bountiful Provi- 
 
 £3,500 
 
 
 
 
 
 2,000 
 
 
 
 
 
 9,333 
 
 6 
 
 8 
 
 14,833 
 
 6 
 
 8 
 
 9,000 
 
 
 
 
 
 5,833 
 
 6 
 
 8 
 
 2,000 
 
 
 
 
 
 9,000 
 
 
 
 
 
 7,000 
 
 
 
 
 
 14,833 
 
 6 
 
 8 
 
266 APPENDIX. 
 
 dence has blessed witt the means, to co-operate with the pious Nuns 
 in their meritorious labours ; and by their timely aid to relieve them 
 from the embarrassment of this weighty debt which is now pressing 
 upon them. 
 
 Contributions will be thankfully received by the Kev. Mother at the 
 Convent, and by, dear Mr. Editor, yours, very truly, &c., 
 
 James O'Neal.* 
 
 * The above letter of this valued and revered priest admirably shows 
 the superiority in efficiency and economy of the religious system. 
 
 FINIS. 
 
INDEX, 
 
 Act of George II,' debates on in 1736, 
 88 ; principles and provisions of, 76 ; 
 cases on, 85 
 
 Alienation of land, anciently mirestriot- 
 ed, 17, 34 ; feudal restraints on, 26 ; 
 removed, 43 
 
 Ancient laws as to death-bed disposi- 
 tions, 18 ; as to provision for relations, 
 54 ; altered, 55 
 
 Appendix, 169 
 
 Ardibishop of Westminster, bis evidence, 
 223 ; his treatment, 49 
 
 Archbishop of Dublin's evidence, 220 
 
 Bach, Mr., his evidence, 186 
 
 Bequests, ancient law as to, 18 ; for cha- 
 rity encouraged after the Reformation, 
 47 ; effects of encouraging, 48 ; for 
 Catholic purposes proscribed, 50; 
 alteration of the law as to, 52 
 
 Bishop of Southwark, his evidence, 225 ; 
 of London, his evidence, 192 
 
 Blake, Eight Hon. Anthony, his evi- 
 dence, 181 
 
 Bowyer, Dr., his cooperation in the coun- 
 ter report, 239 
 
 Burge, Mr., evidence of, 177 
 
 Cardinal Wiseman, treatment of by the 
 Committee, 152 ; evidence of. Appen- 
 dix, 224 
 
 Cases, on ancient mortmain laws, 29 ; 
 on modem law, 80 ; on the penal laws, 
 58 ; of Catholic bequests, 127 
 
 Catholic bequests illegal, 50 ; prevented 
 from holtUng land, 58 ; secret trusts, 
 62, 93 ; doctrine as to rehgious be- 
 quests, 228 ; provision for relatives, 
 164 
 
 Charity, deohne of after the Revolution, 
 46 
 
 Committee on the law of mortmain, 1844, 
 113; 1851,137 
 
 Corrupt character of the age of the Ee- 
 volution, 65 
 
 Cox, Dr., his evidence, 194 
 Cripps, Mr., his evidence, 188 
 
 Debates on act of George II, 1736, 68; 
 on laws of mortmain, 1844, 1 20 
 
 Effects of old mortmain laws, 32 ; of 
 modem law, 84 
 
 Evidence of Sir F. Palgrave, 170 ; of Mr. 
 Burge, 177; of the Lord Advocate of 
 Soofland, ] 80 ; of Eight Hon. Anthony 
 Blake, 181; of George Frere, Esq., 
 182; of George Hadfield, Esq., 184; 
 of E. M. Milnes, Esq., 185 ; of Adolph. 
 Bach, Esq., 186 ; of E. Mathews, Esq., 
 187; of W. Cripps, Esq., 188; of E. 
 Neville, Esq., 189 ; of John Hodgson, 
 Esq., 189 ; of C. Hodgson, Esq., 190; 
 of George Jelf, Esq., 191 ; of George 
 Gibson, Esq., 192 ; of the Bishop of 
 London, 192 ; of Dr. Cox, 194; of J. 
 Eastwood, Esq., 196; of the Eev. T. 
 Sherborne, 197; of the Eev. E.Trappes, 
 199; of Mr. Chapman, 205; of Mr. 
 Shelford, 207 ; of Mr. Bunting, 208 ; 
 of Mr. Bates, 210; of Mr. Hitchin, 
 211 ; of the Eev. H. Venn, 211 ; of the 
 Right Hon. P. Leigh, 211 ; of W. H. 
 RiddeU, Esq., 213 ; of Mr. Bray, 218 ; 
 of Mr. Skirrow, 215 ; of Mr. Cooke, 
 217 ; of the Lord Provost of Edin- 
 bugh, 219 ; of the Eight Hon. T. C. 
 B.Smith, 219; of the Eev. R.O'Hanlon, 
 220; of Mr. Sinnott, 220; of the 
 Archbishop of Dublin, 220; of Mr. 
 Wale, 221 ; of the Eev. J. Kavanagh, 
 222 ; of Mr. Harting, 233 ; of Car- 
 dinal Wiseman, 333 ; of the Bishop of 
 Southwark, 225 
 
 Feudal system, nature of, 17; unfa- 
 vourable to alienation of land, 31; 
 real scope of mortmain laws, 27 ; put 
 an end to, 55 
 
 Frere, Mr., his evidence, 182 
 
268 
 
 INDEX. 
 
 Gibson, Mr., his evidence, 192 
 
 Hadfield, Mr., his evidence, 184 
 Hodgson, Mr., his evidence, 189 
 
 Jelf, Mr., his evidence, 191 
 
 Keogh, Mr., his conduct on the Com- 
 mittee of 1851, 140 
 
 Leigh, Eight Hon. Pemherton, his evi- 
 dence, 211 
 London, Bishop of, his evidence, 192 
 
 Modern law against testamentary dis- 
 positions for pious purposes, 79 ; cha- 
 racter of the age in which it passed, 
 65 ; real reason and policy of, against 
 charity, 83 ; results of, 85 ; debates 
 on, 72 ; opinions upon in Parliament, 
 108; in the evidence, 113 
 
 JNIonsell, Mr., his labours on the Com- 
 mittee of 1851, 
 
 Mortmain laws, origin and nature of, 21 ; 
 cases upon, 29 
 
 Neville, Mr., his evidence, 
 Palgrave, Sir F., evidence of, 170 
 
 Reformation, age of the, 46 ; its policy 
 
 as to charity, 48 
 Religious orders, origin and nature of, 
 
 1-16 ; trusts of, how discharged, 36 ; 
 
 effects of, 38 ; suppression of, 41 ; law 
 
 as to. Appendix, 260 
 Report of Committee of 1844, 200 ; of 
 
 1851, 229 
 Revolution, age of, its character, 65 ; 
 
 its policy as to charity, 83 
 
 Smith, Right Hon. T. C. B., his evi- 
 dence, 219 
 
 Trusts, spiritual and not legal, recog- 
 nized, 35 ; secret, Catholic or Pro- 
 testant, 92 
 
 Undue influence, law as to, 88 
 
 Wiseman, Cardinal, evidence of, 220 
 
 T. RICHARDS, 87 GJtKAT QUEEN STREET. 
 
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 THE- LIFE OF 
 
 HENRY THE EIGHTH, 
 
 ASD HISTOBT OF THE 
 
 SCHISM OF ENGLAND. 
 
 TRANSLATED FROM THE FRENCH OF 
 
 iM. AUDlN, 
 
 (author Oi' THE LITB3 OF CALVIN AHO LVTHBU), 
 
 BY EDWARD G. KIRWAN BROWNE, 
 
 LATE CURATE OP BAWDSKY, SUFFOLK. 
 
 Much has been written on the subject of the Refoimation, 
 both by Catholic and Protestant writers ; but when we consider 
 that almost every book on history is replete with errors, 
 calumnies, and misrepresentations of the ancient faith, no 
 publication could be moie acceptable, none certainly more 
 seasonable, than the present translation of M. Audin's truly 
 Yaluable history, which is now offered to the Public. i 
 
 M. Addin, in preserving for our admiration and for that of 
 posterity, the virtues that adorned those glorious martyrs who 
 suffered in the cause of tiuth under the reign of Henry VIII., 
 and in holding up to eternal execration the vices that disgraced 
 tliat monarch's reign, has eminently fulfilled the duties of an 
 historian. 
 
 To the Catholic, however much he may have read, the 
 present work will prove an immense source of historical in- 
 
struction, the more valuable as nothing will be found in these 
 pages that is not substantiated by the testimony, not only of 
 writers contemporary with the events which it relates, but of 
 all subsequent authors of merit, both Catholic and Protestant, 
 and also by that of numerous quotations from, and references 
 to, inedited and importaut documents. We have in this work 
 a valuable fund of undistorted and undeniable facts, in a more 
 concise form than in ^ny other book that has yet been pub- 
 lished in the English language. To the Catholic, who is still 
 suffering for that faith for which More and Fisher laid down 
 their lives, the title of the work will almost serve as a sufficient 
 recommendation, and the perusal of its contents cannot fail to 
 stimulate his courage to the patient endurance of all difficulties. 
 To the Protestant, who is prepared to investigate without 
 prejudice, and who has gleaned all his information on this 
 subject from the pages of Fox and D'Aubigne, we would say, 
 audi alteram partem. But to all who are anxious for the 
 diflFusion of useful historical knowledge, the present volume 
 ■will be found a valuable acquisition to the literature of the day. 
 
 The work commences with a brief, but interesting, sketch of the reign 
 of Henry VIl., and proceeds with the early part of that of- the principal 
 subject of this history ; his marriage with Catherine of Arragon ; his 
 coronation. — State of Europe at that period. — War with France, and 
 subsequent peace. — The battle of Marignano. — Policy of England. — 
 The Empire. — The Field of the Cloth of Gold. — The execution of 
 Buckingham. — Henry against Luther, and Luther against Henry. — 
 Wplsey, his intrigues, political career, disgrace, fall and death. — New 
 •war with France. —Treaty of the Duke of Bourbon. — Henry's first 
 acquaintance with Anne Boleyn, and the influence which she exerted 
 in bringing about the Reformation. — Project of divorce. — Sacking of 
 Rome. — The Decretal. — Cardinal Campeggio. — More High Chancellor. 
 — ^The universities, and means employed to gain them over in favour of 
 the divorce, — Henry head of the Church. — Marriage of Anne Boleyn. 
 
- — Divorce and Coronation. — Schism of England — The Nun of Kent. 
 — The Carthusians and Fisher — More at the Tower ; his execution. — 
 Dissolution of the Monasteries, and its effect on the poor — Death of 
 Catherine. — Disgrace of Anne Boleyn ; her trial and execution. — Spolia- 
 tion of the monasteries. — The heretics. — Cardinal Pole and his family. 
 — The six articles. — Anne of Cleves. — Another divorce. — Catherine 
 Howard. — Another war with France. — Cranmer. — Catherine Parr, and 
 following years of Henry's life. — Norfolk, the successor of Cromwell. 
 — Death of Henry VI II. These may be considered the principal 
 subjects comprised in this volume, each of which is treated in detail and 
 at length. 
 
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 in the life of Henry VIII., contains a general view of the history of 
 the whole of Europe during his reign. It is a work that ought to 
 be accessible to every Catholic family, and recommends itself 
 particularly to the Catholic youth, for whom nothing is more 
 important than that their early impressions on this important 
 subject should be correct and free from doubt, lest they should 
 be led astray by the misrepresentations and gross libels of those 
 who make saints of Luther and Cranmer, and who, like Mon- 
 tesquieu, attribute England's prosperity to the unholy and 
 antichristian change in her religion. 
 
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 Translations in preparation. 
 HISTOIRE DU PAPE INNOCENT III. Hurteb. 
 LE VER RONGEUR, par Abbe Gaume. 
 HISTOIRE DE LUTHER. Audin. 
 HISTOIRE DE GREGOIRE VH. Voight. 
 
£. J. MARSHALL 
 
/I 
 
 • i 'i H, 
 
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