spiritual not legal cognizance; so that the religious houses not only were at law absolute owners of the lands, but were unfettered 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"; while dispositions (to persons not incorporate) 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 It declares:

reverse.

"That gifts or alienations of lands and tenements in mortmain are prohibited or restrained by Magna Charta and divers other wholesome laws, as prejudicial to and against the common utility."

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 implies an untruth; either a false representation or a false impression. "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 ante.

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 incapacity 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 suggested, 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 "charitable", 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 dispositions, 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 hereditaments, 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 purchase of any lands, etc.,† shall be given, granted, aliened, transferred, or

* Policies of assurance are not within these words. (March v. AttorneyGeneral, 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.

A bequest of a sum of money to be laid out in building a church or

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 charitable purposes.t The relief of the poor, or the support of schools, or the erection of a church,|| are all, of course, "charitable 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,¶ 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. Asboun, 3 Russell, 456; Attorney-General v. Ackland, 1 R. 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 carrying out of which the courts choose to consider implies and involves the purchase of land. (Millbank 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. (Mellick v. Asylum, Jacob's Reports, 181; Doe dem. Thompson v. Pilcher, 3 Maule and Selwyn's Reports, 407; and 6 Taunton's Reports, 359.)

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 Barnwall and Alderson's Reports, 710.)

Doe dem. Preece v. Howells, 2 Barn. and Adolp. Reports, 744.

§ Kirkbank v. Hudson, 1 Donel's Reports, 259.

|| Pritchard v. Osborne, 3 Russell's Reports, 456. But churches in connexion with the Establishment are exempted by modern 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 corporation 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.)

¶ 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 numberless 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

twelve calendar months, 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 making thereof."

The gist of this of course was, to prevent parties from disposing of property by deed to take effect at their deaths, which would, in substance, be a devise. This and the following provision 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 persons claiming under him.”

This provision is in furtherance of the preceding one, and prevents a party from disposing of his land, absolutely, to charitable uses by deed, reserving to himself a life-estate or a rentcharge, 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 be laid out in the purchase of lands,† 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 v. 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 1838, 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 charitable uses: but, unhappily, the deed of 1838 was not attested by two witnesses, and the deed of 1839 was not enrolled; and so both were void! (Attorney-General v. Gardner, 12 Jurist, 67, Vice-Chancellor Knight Bruce.) + 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

shall be made in any other manner than by the act directed, shall be absolutely 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 disposition 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 political or economical reasons, but were actually and really construed solely with reference thereto; and were dispensed with, or rather, held satisfied (as already has been shewn) on security being given for compensation in respect of pecuniary losses sustained. The act of George II likewise professes 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 mortmain, cease to operate when these political or economical mischiefs 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 absolutely prohibiting the disposition of land to charitable uses at death, even where there are no relations, or they are duly provided 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. (Townsend 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-General v. Gladstone, 13 Simon's Reports, 7.)

* See 9 George II, c. 36, A.D. 1736.