A Bill intituled "An Act for securing the due Administration of Charitable Trusts in England and Wales." Ordered to be printed, 7th April, 1845. WITH the pagan philosophers the virtue of charity was not considered cardinal. It held no prominent place in the ethical codes of Greece or of Rome. The first who rendered it an object of express municipal encouragement was the converted Emperor Constantine. So, likewise, the original of all mortmain enactments may be referred to his successor Valentinian. Under the superintendence of the unrivalled jurists of the sixth century, this subject soon became an interesting branch of civil jurisprudence. We need not, therefore, be surprised to find that the fundamental principles of the Court of Chancery regarding it, are taken from the Novels of Justinian. Of this the familiar maxim that bequests to pious uses shall be deemed privileged, (on the strength of which Lord Eldon reversed a decree of Sir William Grant1), is but one, though certainly a remarkable, illustration. In our own country, the earliest systematic dispensation of charity was by the religious houses, the convents and monasteries of the Catholic times. These foundations charged themselves peculiarly with the care of the poor; whom they not only relieved, but in fact maintained throughout the island. Hence poor-rates, and overseers, and work houses, were then things undreaded and unknown: for the monks, especially those of the famous Benedictine order, went infinitely beyond the happiest efforts of the Somerset-house Commissioners. In them the characteristic vow of poverty was graced and verified by bounty. Their merit, however, had in it something better than the liberal and constant, but indiscriminate, alms which they doled at their gates. They, indeed, alleviated distress in whatever form it appeared. Mills v. Farmer, 1 Mer. 55. But their great distinction, their truest glory, their highest claim to the veneration of posterity, is founded on their schools of education; by which, in barbarous ages, they diffused at once the benefits of knowledge, and the blessings of religion. No wonder then, that, after the lapse of more than three centuries, in spite of misrepresentation and calumny1, the memory of these benefactors is still cherished and revered by popular tradition. We are not now to expatiate on the general consequences which resulted from the suppression of monastic establishments; neither shall we pause to contemplate the foul scramble which took place, when the rapacious Henry distributed his ill-gotten booty. Enough for our present purpose is it to say, that the poor, and those who had none to help them, were among the chief sufferers on that rueful occasion. The dispersion of many thousand wretched beings. throughout the country, their miseries, their complaints, their clamours, their importunities, led ultimately to the passing of two well-known enactments, the original poor law act2, and the statute of charitable uses 3; both emanating contemporaneously from the wise government of Queen Elizabeth. With the former of these we have nothing to do here; but the latter demands our first attention, since it, in fact, forms the groundwork of the law of charities administered in England for now upwards of two centuries past. On examining that statute we find its operation limited to the following objects, namely 1. For relief of aged, impotent, and poor people. 2. The maintenance of sick and maimed soldiers. 3. Schools of learning. 4. Free school. 5. Scholars in universities. 12. Of highways. The reports of the legal emissaries who were turned loose all over the kingdom, in search of matter to criminate the religious houses, and to justify their subsequent spoliation, are now acknowledged to be one of the most discreditable features which deform the early history of the English Reformation. 13. For education and prefer- 18. For redemption or relief of ment of orphans. 14. For marriage of poor maids. 15. For supportation and help of young tradesmen. 16. Of handicraftsmen. 17. Of persons decayed. prisoners or captives. 19. For ease and aid of poor 20. Setting out of soldiers. By the second section it was provided, that the Act should not extend to any college, hall, or house of learning within the Universities of Oxford or Cambridge; or to any cathedral or collegiate churches; or to the colleges of Westminster, Eton, or Winchester; a restriction which has been followed in all subsequent enactments, authorizing general commissions of enquiry into charitable endowments. The third section provided that the Act should not apply to those cases where, by the directions of the founder, special governors or visitors were appointed to inspect and rectify the trust administration. This exemption was introduced upon the principle, that where the donor himself had prescribed a course of superintendence, the legislature ought not to interfere; a notion specious and plausible, but which we shall see was subsequently, and on the best grounds, abandoned. Adverting to the quaint recital in the statute of charitable uses, Sir William Grant, M.R., observes with characteristic precision of thought and expression, that "charity, in its widest sense, denotes all the good affections men ought to bear to each other; in its more restricted and common sense, relief to the poor. In neither of these senses is it employed in the Court of Chancery. In that court it means, such charities only as are within the letter and the spirit of the statute of Elizabeth." The law of England, in fact, takes cognizance of no other charities. During the first year after the statute passed forty-five commissions of charitable uses were issued. From that time to 1643 the returns are defective, the docket books in the Petty Bag Office having been destroyed. From 1643 to the Restoration there were two hundred and ninety-five commissions. No less than three hundred and forty-four were issued between 1660 and 1678. From thence to 1700 there were one hundred and ninety seven. From 1700 to 1746 only one hundred and twenty-five, and from 1746 to 1760 no more than three. So that the whole number from 1643 to 1760 was nine hundred and sixty-four. Throughout the long reign of George III. only three commissions were issued; since which period they have fallen into complete desuetude. Many reasons might be assigned for their discontinuance. The simple-minded reader may perhaps imagine that it arose from the greater purity of modern administration. This amiable delusion we must immediately dispel, by assuring him that the trustees of charities within the reach of living memory were about as corrupt and as heedless of their sacred duties as those who have slumbered in their graves for nearly two centuries. We shall institute, therefore, no invidious compari sons. The representatives down, at all events, to the opening of the present century were worthy of their predecessors. But experience soon taught that the cumbrous machinery of commissions of charitable uses were but ill-adapted to the purpose contemplated by the Parliament of Queen Elizabeth. They were utterly inapplicable to charities of small amount, on account of the expense which attended them. And even in the case of large charities, their effect in general was to land the contesting parties in the Court of Chancery: and this by a circuitous process, more tedious than a suit, and less satisfactory. Hence, no doubt, it was that informations in the Court of Chancery, filed by the Attorney-General at the instigation of relators, were resorted to; a species of remedy we rather think unknown (at all events unpractised) at the date of the statute. This method of redress did not come into vogue till the time of Lord Keeper Bridgeman. Its comparative utility became soon apparent. It was consequently countenanced by succeeding judges-especially by Lord Hardwicke-who held the great seal as chancellor for nearly twenty years. Now it will be found (if we are not much mistaken) that in proportion as informations multiplied, commissions of charitable uses became unpopular; and thus were at last thrown aside altogether.1 A charity information is a proceeding founded upon this 1 The last commission of charitable uses was issued in the case of the Kirkby Ravensworth Hospital, 15 Ves. 305., 8 East, 221. principle, that the Crown, independently of the statute, has an original inherent right, involving also a duty, as parens patriæ, to take when necessary into its own hands the care of endowed charities. This high prerogative of general superintendency is exercised through the medium of the chancellor as keeper of the royal conscience. A distinction is therefore recognizable between the authority of the great seal and that of a mere judge in equity; Sir William Grant having observed, "that to the great seal, as superintending all property destined to charitable uses, powers may be supposed to belong beyond those which it would be competent to him sitting in a mere judicial capacity to exercise."1 Before consenting to file a charity information, the Attorney-General requires the certificate of a barrister that the case is proper for his interference; he of course also exercises his own judgment; and sometimes hears the parties, their solicitors, or their counsel, before issuing his fiat. He is in truth the real plaintiff in the cause, and has the exclusive government of it in all its stages. He may persevere with it, or abandon it, or compromise it at discretion. And in whatever course he pursues, he is guided entirely by public considerations; consulting neither the interest nor the wishes of his informants, who, however, are retained on the record, that they may be answerable for costs to the defendants, in the event of the suit proving groundless. This proceeding, in one respect, resembles the actio popularis of the Roman law; for the parties instituting it need not have the slightest personal concern in the subject-matter of complaint; any persons, however remote in the contemplation of the charity, being entitled, if solvent, to fill the character of relators. In the year 1786 the great question of Poor Law began seriously to agitate the public mind. And, apparently with a view to lay the foundation of some general scheme of amendment and relief, we find that an Act was passed (the 26 Geo. 3. c. 58.) requiring returns upon oath to be made by ministers and parish officers for the guidance of the legislature respecting all such charities as were destined for the benefit of the poor. In a very few years a great body of information 14 Ves. 334. |