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enjoy some 25,0001., the fortune amassed by an old hat-maker, and destined by him to support and consule the old age and misery of some of his destitute Irish fellow-countrynien ! What words of condemnation are too strong to characterize a law which, under pretence of preventing the disinherison of heirs, seizes on the property of the poor and needy, and hands it to a new-made noble, utterly unconnected with, and unknown to, the original testator? It may be that Lord Brougham, acting on high and disinterested motives, perhaps willing to spare a law he commends the disgrace of such an effect, will restore the glittering bribe, and restore the spoil to the defrauded misery of Ireland ; but the law remains the same; the law which deprived the iguorant and uncared-for population of Westminster of 5,0001. left by Dean Ireland to build a church; which held back froin Chelsea the acre of ground left by the Marquis of Westminster for the same good object; the same law exists to dishonour God, and rob his poor! With such facts before us, not isolated facts, coming once in a hundred years, creating astonishment and indignation for a moment and then disappearing into oblivion,--but facts, the common effects of this law, constantly recurring, daily, as it were, dogging the steps of charity, and lying in wait for piety; defeating the just and good intentions of testators, defrauding the poor and needy, adding to the wealth of the rich at the expense of the destitute, favouring knaves and rogues, the profligate and the fawning, with all these, the admitted results of this law, placed before the view of the legislature, it does appear to us inconceivable, that a bill to remedy such gross injustice should at the instance of the ministry have been rejected on a second reading! That the law officers of the crown should, according to their brief, pick what holes they could in the various provisions of the bill, was natural enough, but that a majority of even this House of Commons should sanction the principle of the existing law, does indeed surprise us. But an analysis of the division list gives us good hope for the future. Many of the most influential names in the House of Commons are found in the minority. Lord George Bentinck and Mr. O'Connell, Lord Courtenay and Mr. Charles Buller, cannot unite in such a cause, without bringing it to a successful issue before long. With the merits or demerits of the particular bill that was rejected on the 4th cof March we are not now concerned ; indeed we think Lord John Manners would do well, retaining the principle of that measure, to adopt other provisions so as to meet, as far as may be reasonable and consistent with that principle, the objections of wen like Mr. Ellice and Mr. Walpole. If the timidity of some, and the absurd jealousy of others, will not permit to testators as free a power to bequeath their property to charitable and good as to vain and foolish purposes, then we say, let us take what we can get; the absurdity and injustice of the present system is so apparent that few are prepared to resist all change; let us, then, avail ourselves of the means that are within our reach, and with this object we will venture to throw out the following suggestions, which will be found to accord with those of the Select Committee, and with some, at any rate, of the professed objects of the very law we propose to bring into harmony with itself.
Assuming, then, that one of the alleged main intentions of the statute the restriction of dispositions of land, whereby the same becomes inalienable,” is a legitimate end of legislation, and that land devoted to charity is inalienable—an ad. mission we make merely for the sake of argument, we should advise our parliamentary friends to propose, that whenever any devise or grant of realty fails, as coming within the provisions of the 9th Geo. 2, the land so devised or granted should be sold, and the proceeds devoted to the charity. It is evident that to this alteration of the statute, which is in strict analogy with the general law of bequests, no objection can be taken on the score of political economy, or public utility. Minute philosophers may argue that the interests of commerce are not subserved by inalienable estates, but no one will pretend to assert that money in the three per cents. may not just as advantageously be devoted to the maintenance of a hospital or a college, as to the support of individual grandeur, or the satisfaction of private luxury. Well; the fears of country gentlemen as to a troublesome neighbour, who gives no dinners, and cannot, if he would, part with “angulus ille, qui nunc de normat agellum ;" and of Manchester philosophers, whose motto is “ keep moving," are now satisfied: and there remains only the popular, Protestant jealousy to appease—the jealousy of priestly influence, and death-bed solicitations. Now, as in the case just disposed of, so here we make an enormous admission, when we propose to sanction practically this hazy and uncharitable suspicion, by legislating as if it were well grounded : but with this general protest against its justice, we should recommend it be yielded to, so far as to admit the restrictions adopted by the present government in the case of Ireland. And here again we recognize the wisdom of the recommendations of the Select Committee-But while they think the popular fears on this subject exaggerated, your Committee admit the propriety of guarding against general 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 ill 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.' We shall then simply propose, that no such charitable bequest or grant shall partake of the benefit of the above provision, that shall not have been made three months before the testator's or grantor's death. A quarter of a year must be allowed by even the most nervous of wealthworshippers, to be an ample space of time between the signing a will and the testator's death; it is a month longer than the period assigned by the Scotch law, and identical with the recent Irish statute ; thus, in addition to its intrinsic value, this provision would have the merit of substantially assimilating (though in no pedantic particularity) the laws affecting charitable bequests in the three kingdoms. Those among our law reformers who chiefly affect this uniformity and codification may reasonably be expected to approve of, and support both these provisions; and if they, contrary to our belief, oppose them, then sure we are, the uncharitable inconsistency of that opposition will not fail to aid the cause it is intended to defeat.
But while these suggested alterations would place the law of charitable bequests on a satisfactory and consistent footing as far as real property is concerned, it will appear from what was said at the commencement of this paper, that a new definition of realty is called for by the present received doctrine of the courts. That which an act of parliament declares to be personalty, and which is so regarded for all legal purposes, is ruled to be realty if devoted to charity,* and endless are the troubles, litigation, and doubts which this extraordinary construction of the courts causes to persons who wish to bequeath some part of their personal estate to charity. We know an instance of a gentleman who sold all his English railroad shares, and invested the proceeds in foreign lines, for the purpose of making a valid bequest to a favoured charitable object; and there is hardly a solicitor or a conveyancer who does not testify to the anomalous and vexatious condition in which this branch of the law now is. Perhaps a decision pronounced in August last, by Vice-Chancellor Kaight Bruce, should it not be subverted on appeal, may do soinething to prevent for the future the absurd injustice of which we complain. In Thompson v. Thompson (see 1 Col
* Mr. Harrison, the eminent conveyancer, gave an opinion on a will in 18426 The reversion of the investment, and the remaining moiety of the residuary pioduce, goes to the next of kin of the testatrix, because the railway shares, though personal estate, are yet an interest in land, so as to make a bequest thereof, in favour of charities, void under 9 Geo. 2, c. 36."
lins' Chancery cases, 381) his honour ruled “that the shares in the London Gas-like Coke Company are not within the statute of Mortmain.” But on the other hand, the authorities against this judgment were very strong, and supported by no less than ten learned counsel, so that we cannot regard this decision as settling the question for the future, although it unquestionably is consistent with common sense and equity, and affords an irresistible argument in favour of the legislative definition which we now suggest-canal shares, money out on mortgage, railway shares, and all virtually personal property should be declared not to come within the meaning and operation of the 9th Geo. 2, c. 36.
Should the authors of the late attempt to repeal that unjust law in another session of parliament, bring in a bill based on these suggestions, which we have extracted from the report and evidence of the Select Committee, we are convinced the weight of argument, common sense, and justice, would bear down all before them, and compel this, or any other ministry that may then be in office, to redress the wrong against which we now protest, and restore order and equity to that branch of the law. * Claptraps about “our Euglish Justinian” (pace Sir James Graham) and “priestly interference,”. (pace Mr. Colquhoun) will not avail to sustain a law which has never yet defeated the fixed purpose of any testator, who, from whatever motive, was determined to leave his property away from his heir, and which has been only too successful in thwarting harmless bequests, and meritorious charity.
A reform of the law, such as we have suggested, is open to none of the objections which sober reasonable members of English society might urge against a bald repeal of the 9th Geo. 2, c. 36; but should the ashes of effete Guelph bigotry be raked up to excite a Protestant flame, or the cast-iron theories of the Political Economy Club be marshalled in array against us, then we feel justified in reminding the blind zealots of Exeter Hall, that the great spiritual enemy which England in the 19th century has to dread, and to oppose with every available
weapon she can reach, is a Being far more subtle than a Jesuit, far more destructive than a priest of any communion, or even a sister of mercy. They mean it well no doubtthose men who prefer infidelity to priestcraft, but to any one who is in the least conversant with the state of our large towns, or even of hundreds of our rural parishes, with the awful disproportion between the harvest and the reapers, who has marked the triumphant progress of atheism, lewdness, and pantheism: to such a one it cannot fail to be a matter of heartfelt sorrow to witness the energies of men who boast of the purity and expansiveness of their religion wasted and prosti
tuted in an attempt to restrain the propagation of religion and piety, lest, perchance, in some instances, they should take a direction disapproved of by them. Well may it be said of them, as surly Samuel said of their spiritual progenitors, “had they lived at the Delage they would not have ceased to call • Fire.” England is a prey to irreligion and vice, and they stop the way against the piety and charity that would fain go forth to the battle against them.
And as for the disciples of Adam Smith, if they compel us, by standing out for the very least and most doubtful of all their axioms and postulates, to enter into the field of abstract controversy with them, why we have no objection to argue in the negative the question asked by Mr. Soutbey, If we had Dukes of Durham and Winchester, instead of Bishops, would the lands attached to the title be more productive, or the tenants sit at easier rents ?' and to assert that it is for the wellbeing of a community, such as that of England, to have churches, hospitals, colleges, and schools, founded and endowed by the munificence of individuals, whether out of their real or their personal estate. Noone can assert with our million of annual recipients of state charity, with our hundreds of thousands of citizens to whom the Gospel is altogether unknown, and the law known only by its terrors, that every legitirnate end of private Charity is already fulfilled, and until that is the case, it is a cruel and bitter mockery to conjure up before the vision of an untaught, unconsoled, and miserable population, phantoms of sacerdotal grandeur, and mercantile degradation. It was well said by a recent writer, “There is no danger now of ecelesiastical latifundia. There is no danger of the church overrunning the landed proprietors of the kingdom.' The danger is, we repeat, from another and hostile quarter, and we quit this subject with a hearty prayer, that all to whom Religion, Virtue, and Peace are dear, will no longer allow the meaningless phrases of modern philosophism, or the unreal apprehensions of Protestant superstition, to deter them from supporting such an amendment in the law of mortmain, as may deprive that law of its uncharitable inconsistency, and facilitate the gracious flow of pious munificence through the arid fields of spiritual and temporal misery and destitution, which at present so disgrace and disfigure the proud and gorgeous surface of modern Euglish society.