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, by prohibiting Catholics from holding any lands at all. Thus the act for preventing the growth of Popery passed, the cases upon which show, that it was in pursuance of the policy of the acts suppressing religious 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 abjuration [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 disabled and incapable to inherit or take, by descent, devise, and limitation, any lands, tenements, or hereditaments; and every papist or person professing 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 profits 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 following:

66

"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 arguments, 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 Radcliffe 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.

+ 2 Brown's Cases in Parliament. Lord Hardwicke was then at the bar.

"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 codicil, 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 William III, to prevent the growth of popery.”+ "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 jesuits, 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 argued, 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 solicitous 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.

The object of which, the Chief Justice said, was to work papists out of their lands.-9 Modern Reports.

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 Reports, 195. § 1 James I, c. 4. 3 James I, c. 5. 3 Charles I, c. 2.

|| 10 Modern Reports, 234.

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 employed 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 land), 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 persons 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 offender 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 Derwentwater, 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."+

In another case, in. the reign of George I, in the year 1720,‡ 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 six 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 Reports, 180.

Hill v. Filkins, 10 Modern Reports.

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 persons 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 by the parliament as a sufficient proof of her conformity."

In the reign of George I, in the year 1722, 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 decided for the crown, for that he was dead in law. He appealed to the delegates; 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 took the oaths and received the communion according to the Church of England, and became a Protestant; 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 directed, 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 Protestant, 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 permitted her to receive the rents and profits of the land. Four 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.

offered of it, it is no more than the bare fact of having received the sacrament, 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 conversion does not say, that he believes her now to be a Protestant. I will do nothing now.

*

In 1724, 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 enjoyed 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 remainder, and soon afterwards‡ died. Thereupon the plaintiff filed a bill, suggesting that 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 refused 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 proscribed, 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 purposes. 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 foundations, 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.

+ 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.