Annog. Geo. II. 1736.

N the 16th of April, the || Mortmain Bill was read a first time in the Houfe of Lords, a fecond time on the 20th, and on the 5th of May, the faid House refolved itself Mortmain Bill into a Committee upon the fame, when the chief Debates read by their Lordships. happened both in relation to the Merits of the Bill in general, and in relation to the several particular Claufes.

Before the House resolved itself into the faid Committee, Claufe offered for the Lord Gower moved for an Inftruction to receive a Claufe the Universities in favour of the Universities, much of the fame Nature with by Lord Gower. that propofed in the Houfe of Commons, with refpect to the giving them a Liberty to exchange the fmall Livings they were, or might be in Poffeffion of, for others of a greater Value, fo as the Number of Advowfons in the Poffeffion of any College, might never exceed the Number prescribed by the Bill; in which he was fupported by the Lord Bathurst, Lord Bathurst, the Earl of Abingdon, the Earl of Strafford, &c. but upon the Earl of Abingdon, Queftion's being put, it was carried in the Negative. Earl of Strafford.

After the House had refolved itself into the Committee, Amendment to the Earl of Strafford took Notice that the Words (to Ufes the Preamble called charitable Ufes) in the Preamble, feemed to caft fome propofed. fort of Reflexion upon those charitable Foundations which had been lately established, none of which, he hoped, their Lordships would look on as a public Mischief, and therefore he propofed leaving them out, in which he was feconded by the Earl of Abingdon, and the Bishop of Salisbury; but this Amend- Earl of Abingdon, Bishop of Salif ment was disagreed to, because some of the late Difpofitions bury. made to fuch Foundations feemed to be a little extravagant,

and even the Foundations themselves, if they had not already, might very foon become a public Mischief.

by the faid Pre

The Bishop of Salisbury likewife took Notice, That, by Explanation for 'fome Words in the firft enacting Claufe, the charitable Queen Anne's • Foundation called Queen Anne's Bounty, which he hoped Bounty propofed was looked on by all their Lordships as a most useful and late. neceffary Foundation, would be difabled even from taking any Sum of Money or other perfonal Eftate; for by that Claufe, as it then flood, no Sum of Money, or other per⚫ fonal Estate whatsoever, to be laid out in the Purchase of Lands, could be given by Will to any charitable Ufe whatfoever; and as that Society, by their own Rules and Or ⚫ders, were obliged to employ all Sums of Money left to

See the Proceedings of the Commons on this Bill, in the Introductory Minutes to Chandler's Fiift, of this Seffion, P. xlv, to lii. ⚫ them

Anno 9. Geo. II. 1736.

Purchases offered

to them in the Purchase of Lands, he was afraid, that every Legacy left to them by Will, would be within the restraining Words of that Claufe; therefore he hoped fome explanatory Words would be added in behalf of that Society,' but this was likewise disagreed to.

Then the Lord Hardwick took notice, That the general Provifo for real Words in the restraining Clause might, in fome Cafes, affect by L. Hardwick, Purchases for a valuable Confideration, therefore he moved, that the following Provifo fhould be inserted in the Bill, viz.

Objected to.

Juftified.

Allow'd.

6

Provided always, that nothing herein before mentioned, relating to the Sealing and Delivery of any Deed or Deeds, "twelve Kalendar Months at least before the Death of the Granter, or to the Transfer of any Stock, fix Kalendar • Months before the Death of the Granter, or Person making fuch Transfer, fhall extend, or be conftrued to extend, · to any Purchase of any Eftate in Lands, Tenements, or 'Hereditaments, or any Transfer of any Stock, to be made 'really and bona fide for a full and valuable Consideration actually paid, at or before the making fuch Conveyance or Transfer, without Fraud or Collusion.'

This was objected to by fome Lords, as being unneceffary, and as it would afford a Handle for evading the Law; for as Conveyances of Land-Eftates might be, according to the Laws of this Kingdom,made by Perfons on their Death-bed, it would be eafy for any charitable Corporation or Body politic, to pay a full and valuable Confideration in ready Money, at or before the making of any fuch Death-bed Conveyance or Transfer, and at the fame time to have a Will made, whereby the Sum fo paid fhould be left them by way of Legacy, which would be a good Bequeft; and with that Legacy the Body politic might replace the Money which they had laid out upon the Purchase: But it being the general Opinion, that fuch a Conveyance and Bequeft would be interpreted, as made by Fraud or Collufion, in order to evade the Law, and would not therefore be within the Provifo; and it being thought, that it would be a great Hardship upon all Bodies politic, to make void every Purchase or Transfer they could afterwards make or receive, in cafe the Granter, or Person who made the Transfer, fhould, by Accident, die within a Twelve-month after fuch Purchase, or within fix Kalendar Months after such Transfer, even though really and bona fide made for a full and valuable Confideration, paid at or before the making of fuch Purchase, or Transfer, therefore it was agreed, that the Provifo offered fhould be inferted, and made Part of the Bill.

The

1736.

Words propofed

The Committee went afterwards through the Bill, and or- Anno 9. Geo. II. dered their Amendment to be reported to the House; and accordingly, on the 11th, the Lord Delawar, their Chairman, reported the fame to the House, when a Propofition was made to leave out, at the latter End of the firft enacting to be left out by Clause, thefe Words, viz. And unless the fame be made Lord Delawar 'to take Effect, in Poffeffion for the charitable Use intended, • immediately from the making thereof, and be without any Power of Revocation, Refervation, Truft, Condition, Li'mitation, Claufe, or Agreement whatsoever, for the Benefit ⚫ of the Donor or Granter, or of any Perfon claiming under him.' This occafioned a pretty long Debate, the Substance of which we shall give in the Argument upon the Bill in general; but the Question being at last put, Whether those Words fhould ftand as Part of the Bill, it was refolved in the Affirmative; and the Amendment made by the Committee being agreed to, the Bill was ordered to be read a third time; Agreed to. which was accordingly done on the 13th, and the Bill paffed without a Divifion; but the following temporal Lords entered their Proteft, without giving any Reasons, viz.

Abingdon, Beaufort, Oxford and Mortimer, Montjoy,
Northampton, Litchfield, Strafford.

The Arguments for the Bill were as follow, viz.

Proteft thereon

'My Lords, as the landed Intereft of this Kingdom has Argument for always been our chief Support against foreign Enemies, the Mortmain

' and the great Bulwark for defending the Liberties of the Bill.

People, against the Attempts of ambitious, encroaching

Power, therefore it has always been reckoned a most ne

ceffary and a fundamental Maxim of .our Conftitution, not to allow any great Share of our Landed-Interest to be ' vefted in Societies or Bodies politic, either facred or pro'fane: This Maxim appears to be co-eval with our Monarchy, and it is exprefly established by the great Charter; 'for though Grants or Alienations of Lands to religious 'Houses only, be thereby prohibited, yet this Prohibition was founded upon the general Maxim, and religious Houses ་ only were then mentioned, because Alienations to them was at that Time the only Tranfgreffion of this Maxim, ' which had been felt or complained of; but, in the very next Reign, in the feventh Year of the Reign of our great 'Edward I. this Defect was fupplied; and by an exprefs Statute, Alienations of Lands to any body politic whatfoever, were forbidden, under Pain of forfeiting the 6 fame: Nay, fo fenfible was that wife King of the Ne1736. C • ceffity

་

1736.

Anno 9. Geo. II. ceffity of this Maxim, that by the faid Statute it is enacted, that no Body politic fhall prefume to appropriate to themselves any Lands or Tenements by any artful or evafive Method whatfoever; and of fuch Confequence was the Alienation of Lands in Mortmain, thought of old, that by one of our old Statutes, the Writ ad quod Damnum, for alienating Lands in Mortmain was ordered not to be granted, but upon Petition in full Parliament.

'Tis true, my Lords, our Ancestors had feveral Reasons for preventing the Alienation of Lands in Mortmain, which do not fubfift at this Day. We are not now in any Danger of having our Lands fwallowed up by an ambitious and avaritious Clergy, therefore we need not provide fo ftrongly against our Lands paffing into their • Hands. The Defence of the Nation does not now fo much depend upon our Militia or military Tenures, therefore the Safety of the Nation cannot be brought into fo great Danger by a Multiplicity of fuch Grants: And as our Lands are all now held by Socage Tenure, neither his Majesty, nor any inferior Lord under him, can be fo much injured by fuch a Grant: But there is another Rea ⚫fon which then fubfifted, which now fubfifts, and which ⚫ will always fubfift; for if a great Part of the Land Estates ⚫ of this Kingdom fhould ever come to be poffeffed by Corporations or Bodies politic, it might be of the most dangerous Confequence, both with refpect to our Security against foreign Invafions, and with refpect to the Prefervation of our Rights and Privileges; because it is certain, that a Man who has in his own Perfon a particular Right to any Land Eftate, which he may tranfmit to his Pofterity, will be more daring and active in the Defence of that Right against a foreign Enemy, and more jealous of arbitrary Power by which that Right may be made precarious, than we can fuppofe any Man will be, who has a Right in ⚫ the Lands only as a Leffee, or as a Member of a Corporation, This, my Lords, to me will always be a strong • Reason for looking with a jealous Eye upon the growing Property of Corporations in the Lands of this Kingdom: This I take to be now one of the chief Reasons for not ⚫ allowing any Bodies politic to purchafe Lands without the ⚫ King's Licence; and while our Laws continue as they stand at prefent, it is to be hoped that the Power of granting fuch Licences will be made use of with great Circumspecti

on.

As this Power has not yet been too far extended, as we are certain no wrong or unwife Ufe will be made of it ↑ during his present Majesty's Reign, therefore it is not yet abfolutely

2

6

Geo. II. 1736.

abfolutely neceffary to fubject it to any Restraint: But, Anno 9. my Lords, there is an Evil lately grown up; an Evil not founded upon our ancient Conftitution, but an Evil which took its Rife from our having departed, about two Centuries ago, from the common Law of this Kingdom. I mean the Liberty of granting or devifing all Sorts of Land Eftates by Will, and even upon Death-bed, not only to the Disappointment and Difherifon of a Man's natural 6 and lawful Heirs, but to the Prejudice of the common 'Good of this Kingdom, and in Contradiction to that ancient Maxim, which forbids the granting or alienating any Lands in Mortmain. Happy was it for this Nation, and for many great Families in this Kingdom, that no Man had fuch a Liberty in the Times of Popery and Superstition; for if Men could have then granted their Estates by " Will, we should never have had fuch an Article as I have mentioned in Magna Charta, nor any Law against Mortmain, we fhould never have had a Reformation, nay, I doubt much if we should have had a Layman of a LandEftate in England: But, luckily for us, we did not think of this Alteration of the common Law, till the Reformation was not only begun, but pretty far advanced, and ' those Monafteries and Religious Orders diffolved, who had 'been for Ages the Taxers of every dying Man's Will, and 'the Terror of all his Relations.

'We know, my Lords, that this Liberty of devifing 'Land-Eftates by Will, was firft established by a Statute of the 32d of Henry VIII. which was explained and enfor'ced by another Statute of the 34th and 35th of that King's Reign. However, by these two Statutes there were fome Reftraints laid, or rather left, upon granting or alienating • Land-Eftates by Will; for a Man was allowed to devise but one third Part of his Lands held by Knights Service, ⚫ and there is an exprefs Exception made with respect to Bo'dies politic or corporate; fo that no Man could, by these Statutes, devife à Land-Estate to any Body politic or corporate, no not even with the King's Licence; but both 'these Restraints are now in a great measure removed; for all Tenures having been, by an Act of the 12th of King 'Charles II. turned into free and common Socage, a Man may now devife by Will all his fee-fimple Lands if he pleafes; and, by an Act of the 2d of Queen Anne, any • Perfon may by Will devife his whole Land-Eftate to the Corporation for the Bounty of Queen Anne, and they are enabled to take and enjoy the fame, without any Licence 'or Writ ad quod Damnum. So that, with respect to this Corporation, every Man may upon his Death-bed, and 1736. C 2

⚫ even