Imatges de pàgina

object of the institution being education in the Christian religion, which was incompatible with the admission of Jews (r).

5. Unitarians.] It was contended in Attorney v. Pearson (s), that the court could no more carry into effect a trust for promoting Unitarianism, than it could a trust for the preaching of Judaism; and that the one purpose was not more contrary to law, and incapable, on that ground, of being supported in a court of justice, than the other. It was not neeessary, however, in that case to decide the question, although Lord Eldon said, that it was not intended by some recent acts(t) of the Legislature (in one House of Parliament at least) to alter or in any manner affect the common law—his lordship (as a judge in equity) not presuming to say what was the doctrine of the common law in question, nor what effect, intended or not intended by the Legislature, the late acts might have upon it; but if the common law remained unaltered, and if the impugning the doctrine of the Trinity were an offence indictable by the common law, it was quite certain that he ought not to execute a trust, the object of which was illegal (u).

The writer is not aware of any case in which this point has been expressly determined, although persons professing Unitarian doctrines have been held not to be objects of particular charities (v); those cases, however, do not appear to have proceeded on the ground of the illegality of a trust for such persons, but upon the ground that they were not objects within the contemplation of the particular donors, or the terms of the instruments of endowment. A bequest for the benefit of Unitarians having no reference to the propagation of their peculiar tenets, would be valid, upon the same principle as a similar one for Jews (w).

(r) In re Bedford Charity, 2 105. Swanst. 470.

(v) Attorney General v. Shore and (s) 3 Mer. 393, Sir S. Romilly others, V.C., 23rd Dec. 1833; Reg. lib. arguendo.

(A), 1833, fol. 372; Attorney Gene(1) 53 Geo. III. c. 160; Ireland, ralv. Pearson, V.C., 6th Mar. 1835. 57 Geo. III. c. 70; ante, pp. 102, 103. (w) See ante, p. 107.

(u) 3 Mer. 399; see ante, pp. 103,

6. Roman Catholics.] An important alteration has been made in the law respecting the Roman Catholics by some recent statutes (x). The full extent of their operation, in rendering valid purposes which before were deemed superstitious and against the policy of the law, remains to be settled by the construction, which may be put upon these acts. It would be foreign to the object of this work to enter upon the various enactments (y) which have from time to time been made against persons professing the Roman Catholic religion. The subject is only adverted to for the purpose of better explaining the recent acts which have been passed for their relief. We have already seen that Roman Catholics were excepted in the Toleration Act (z). By stat. 11th and 12th Will. III. c. 4, if any Papist, or person professing the Popish religion kept a school, or took upon himself the education, or government, or boarding of youth, he was liable to perpetual imprisonment; but by stat. 31st Geo. III. c. 32, s. 13, a Roman Catholic taking and subscribing the oath and declaration prescribed by that act, was exempted from prosecution for teaching and instructing youth ; but by the three following sections it was declared that no Roman Catholic should hold the mastership of any college or school of royal foundation, or of any other endowed college or school for the education of youth; nor receive into his school for education the child of any Protestant father, nor keep a school until his name, &c. should have been recorded by the clerk of

the peace.

By the 17th section of the latter act, it was provided that nothing contained in it should make " it lawful to found, endow, or establish any religious order or society of persons bound by monastic or religious vows; or to found, endow, or establish any school, academy, or college, by persons professing the Roman Catholic religion within these realms, or the dominions thereunto belonging; and that all uses, trusts, and dispositions whether of real or personal property, which immediately be

(1) 10 Geo. IV. c. 7; 2 and 3 Butl. Co. Littl. 391 a. n.; 4 BI. Will. IV. c. 115.

Comm. 54-59.
) See summary of these laws, (z) Ante, p. 102.

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fore the 24th day of June, 1791, should be deemed to be superstitious or unlawful, should continue to be so deemed and taken.”

Both before and after this act, a disposition for the purpose of bringing up and educating children in the Roman Catholic religion in England was clearly unlawful, and would not be carried into effect by a court of equity (a).

It seems, that by the law of Ireland, the endowment of Catholic schools was illegal as well as in England (b).

A bequest to persons called Roman Catholic bishops and their successors was held void in Ireland, no such characters being known to the law of that country; but where they were named individually, though described as Roman Catholic bishops, a bequest to them as trustees was considered good for their joint lives, subject to the control of the Court of Chancery (c).

Under a devise of freeholds in Ireland to the Catholic bishop of C. in Ireland, and the parish priest of M. and the natural lives of their successors, upon certain trusts, for establishing a foundling hospital in Monaghan or Dublin, it was held that upon the death of the survivor of the then bishop and priest, the heir-at-law of the testator was entitled to

(a) Cary v. Abbot, 7 Ves. 490; III. c. 21, s. 15, the license from ante, p. 99.

the ordinary required by the 21 & (6) Attorney General v. Power, 22 Geo. III. c. 62, was dispensed i Ball & B. 145.

with; the Irish act, 35 Geo. III. c. By Irish stat. 7 Wm. III. c. 4, 21, establishing the College of May. 8. 9, Papists were prohibited from nooth, contains a legislative declarakeeping school under a penalty of tion as to the law upon the subject 201. and three months' imprison- in these words, "whereas by the ment. By Irish stat. 8 Anne, c. 3, laws now in force in this kingdom, s. 16, the same penalty was ex- it is not lawful to endow any college tended to Roman Catholics becom- or seminary for the education, exing ushers in Protestant schools. clusively of persons professing the By Irish stat. 21 & 22 Geo. III. c. Roman Catholic religion, and it is 62, which repealed the above acts, now become expedient, that a seit is provided, that nothing contained minary should be established for therein should allow the erection or that purpose.” See Attorney General endowment of any Popish univer- v. Power, 1 Ball & B. 150–153. sity, or college, or endowed school (c) Attorney General v. Power, 1 in Ireland. By Irish stat. 32 Geo. Ball & B. 145.

recover, as no estate, passed for the natural lives of the successors, either to the then bishop and priest, or their representatives, or to the successors (c).

In a case where a sum of money was bequeathed upon trust, to apply the interest in clothing such poor children as should be educated in the school of the nunnery in Waterford, Lord Chancellor Manners, although he said that it might be presumed that the bequest was for an endowment of a Roman Catholic school, which by the law of England would be deemed invalid, either as contrary to the statute 1 Edward VI. c. 14, or as being against public policy, would not act on that presumption, but referred it to the Master, to inquire and report as to the character and description of the school (d).

By the statute 10 Geo. IV. c. 7, ss. 10, 12, Roman Catholic subjects may hold and enjoy all civil and military offices and places of trust under the crown, and exercise any other franchise or civil right, except the office of guardians, or justices, or regent of the United Kingdom, or of lord chancellor, lord keeper or lord commissioner of the great seal, or office of lord lieutenant, or other chief governor of Ireland, or high commissioner of the General Assembly of the Church of Scotland. The 16th section of the act declares that it shall not enable any person (otherwise than as they were then enabled) to hold or exercise any office, place or dignity belonging to the Church of England and Ireland or Scotland, or any office of ecclesiastical judicature, or belonging to any cathedral, or collegiate, or ecclesiastical foundation, or any office in any of the universities, or in any of the colleges of the universities, or of Eton, Westminster, or Winchester, or any college or school in this realm, or to repeal or interfere with any local statute or rule established in any university, college or school by which Roman Catholics are prevented from being admitted thereto, or from residing or taking degrees therein, nor enable any person, otherwise than as by the law then established, to exercise any right of presentation to any ecclesiastical benefice, nor to repeal the laws then in force

(c) Jack d. M'Guirk v. Reilly, 2 (d) Attorney General v. Power, 1 Hudson & Brooke, 301.

Ball & B. 150.

respecting the right of presentation to any ecclesiastical benefice (e). By statute 2 and 3 Will. IV. c. 115, it is enacted, that after the passing of that act (15th August, 1832) his majesty's subjects professing the Roman Catholic religionin 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 or 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, places for religious worship, education and charitable purposes, and not further or otherwise.

The third section of the act provides, that nothing therein contained should affect any suit actually pending or commenced, or any property then in litigation, discussion or dispute, in any of his majesty's courts of law or equity in Great Britain (f). And the fifth section enacts, that all property to be acquired or held for such purposes of religious worship, education and charitable purposes in England and Wales, should be subject to the provisions of the act 9th George II. c. 36, and to the same laws as the Protestant Dissenters were subject to in England, in respect of acquiring or holding of such property (f).

This statute has been decided to be retrospective, and two cases have established the validity of bequests for carrying on the good designs of Catholic schools--and for promoting the knowledge of the Catholic Christian religion among the poor and ignorant inhabitants of certain specified districts in England ; but gifts to Roman Catholic priests for saying masses for the testator, have been held to be illegal.

A testator by his will, dated 7th March, 1820, gave to his executors therein named, or such of them as should prove and undertake the execution of his will, the sum of 3001. upon trust to pay the same to the treasurer, or to the trus

(e) See stat. 1 Will. & Mary, sess. (f) See Bunting v. Williamson, on 1, c. 26; 12 Anne, st. 2, c. 14, s. 1; the construction of 18 Geo. III. c. 11 Geo. II. c. 17, s. 5; Cruise's 60; Butl. Co. Litt. 391 a., n.,

sect, iii. Dig. tit. 21, c. 2, pl. 41-43.

(g) See post. chap. iii.

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