- i %WX NDOWED CHARITIES COURTNEY KENNY ©nrttpU Ham ^rlinol Sltbrarg MarsliaU Equttg ffioUertton (gift of IE. 3. maraljaU. a:.ffi. 1. 1B94 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263528 By the same Author, The History of the Law of England as to the EFFECT of MARRIAGE on PROPERTY, and on the LEGAL POSITION of the WIFE. (Yorke prize essay of the University of Cambridge, 187**.) By COURTNEY S. KENNY, LL.M., Fellow of Downing College. Price 5s. " To students of history or political science it will be in- valuable, and by upholders of women's rights it should be thorooghly studied, . . . We recommend it to lawyers, laymen, and ladies, as an interesting as well as h^hly instructive work."— Zaw Jtmrnal. " Gives much recondite information in a small space. The style is excellent ; occasionally there is a gem of a sentence. " — Albany iMo Journat (American). " A clever and interesting essay . . . the result of con- siderable research, clearly and concisely expressed. " — Solici- tors' Jfywrwjl. " This learned and scholarlike essay ought to be read by every articled clerk before going up for his final examination, it being replete with useful information on a subject in which questions are so frequently asked by the examiners." — Gib- son's Law Bxaminatitm, "Gives evidence of more than ordinary ability and learn- ing. . . . Mr. Kenny has thoroughly digested his mate- rials." — Law Times. " Displays considerable research, and contains information not to be readily found elsewhere." — Academy. *' A very scholarlike, erudite, and Interesting monograph." — Irish Law Times. " Everything stated is of interest. Altogether the essay is written in a masterly manner, and may be usefully read by all desirous of having more than a present !knowledge of the subject. There is a clever chronological chart." — Laio StiAdents' JourruU. "Deserves thanks both from the legal historian and the sociologist. As an analysis of the growth of our marriage laws from Glanvil to Lord Cairns, it is admirably complete. Moreover, each step is taken at first-hand from the original authorities, and verified all along by copious references."— British Quarterly Sevieio. " May fairly be called a valuable conti:ibution to legal his- tory. " — A thenceum. " Mr. Kenny has added another useful leaf to the modest wreath of repute he has already deservedly won in treating on ^Imogeniture, by this equally learned and comprehensive discussion. The subject is known to be one of the most com- plex in the whole department of law. ... He would deserve well of legal reformers and sociologists if he had done no more than publish his chronological chart, which traces every movement in the law affecting a wife's estate, from the time of the Saxon Kings to the present reign. His Analysis of Contents, and " Logical Analysis " are also highly com- mendable efforts in the art of arrangement, taid point silently and surely to the incoming of anew era, when an impatience with tJie disorder and confusion of English law must bring about a thorough and systematic codification of the whole law, civil as well as criminal."— Westminster Review. Reeves and Turner, Chancery-lane, London. BY THE SAME AUTHOR, liar ElsTCS-X. JLisTID. Or in one vol., price 7«. 6d., Essays on Pbimoqbniture, by C. S. Kenny and P. M. Laurence ; being the YorkeEaaays for 1878. Athenseum. "Valttable aa examplea of calm and scholarlike discussion of a great question which cannot be divested of a political aspect ; and yet more valuable as examplea of the combination of jural and historical with economic inquiry, and of the nature of the field of research lying before economists who have the courage to depart from the worn and narrow d priori road. . . . Mr- Kenny's learning, novelty of treatment, force, and terseness of style. Both essays deserve strong recommendation to students of legal history and political science." Aoademy. ■ " Very learned and interesting. . . . Well deserve the atten- tion of students of both legal history and politics." Westminster Revievt, ■ " So replete with learned informa,tion on the subject that they must henceforth form a necessary hand-book to all persons who deal with the topic.'' British Quarterly, " An admirable sketch of the influences under which the Law of Primogeniture has come to assume its present form in England ; and of the effects it has exercised both upon landed property, and in other social and political aspects." LONDON: REEVES AND TURNER. TRUE ITvINC^PLES/OF LEGISLATION BEGABD TO PROPMTY GIVEN FOR CHARITABLE OR OTHER PUBLIC USES. (BEING AN ESSfY WHICH OBTAINED THE YOEKB PKIZE OF THE UNIVERSITY OF CAMBRIDGE.) By COURTNEY STANHOPE KENNY, LL.M., OF LINCOLN'S INN, FELLOW AND LAW LECTURER OF DOWNING COLLEGE, CAMBRIDGE. As tlie wisdom of man creates great institutions, so the folly of man destroys tlieiii. — BUBKE. L0>;D0N : RPJEVES AND TURNER, CHANCERY LANE. 18 80. PREFACE. Twenty years ago. Lord Campbell urged in Parliament the necessity of a " comprehensive reform of the Law of Mortmain, which is now in a most defective and lamentable condition. If not demolished, it ought to be reconstructed on a very different basis." The period which has since elapsed has brought this subject into the sphere of practical politics ; and questions of Charity reform, whether partial or comprehensive, seem likely to occupy much of the atten- tion of the Legislature for several years to come. I venture to hope that the following pages will be of service, as well to politicians who may be called upon to take part in those reforms, as also to Charity Trustees who may wish to realise the full importance of the duties they are discharging, and even to benevolent persons who, in planning charitable gifts, may desire to enhance their liberality by a wise prescience. For even the philanthropist cannot escape the operation of those natural laws by which the well-being of society is regulated, but must submit to receive from economical science the lessons which it alone can teach. My materials have chiefly been derived from the abundant stores of information which are accumulated in the Blue- books of the last sixty years. With their aid I have IV PREFACE. attempted to illastrate the broad theoretical generalities of my subject by the pi'actical details of actual experience. I can claim no credit for novelty in either the data or tlio deductions of my book. In writing it, my utmost ambition has only been to bring into one focus evidence which previously lay scattered throughout a library, and to present in a compact body principles whose mutual bearing had not before been determined with precision. Charitable Foundations, in the controversies of which they have now for more than a century been the theme, have suffered much from uncompromising opposition, and as much from indiscriminate defence. Both these extremes of opinion I have endeavoured to state accui-ately, but the conclusion to which my inquiries have led me is in hai'mony with neither. Endowed Charities, I believe it will be found, have done more good than harm. They should be protected and encouraged ; but they should also be superintended and controlled. Doivning College. May, 1880. ANALYSIS OP CONTENTS. Part I.— INTRODUCTION. The peculiarities of Charitable Endowments. 1. Indgfinitenesa. p. 1. Supervision necessary. 2. Apparent meritoriousness. p. 2. Restriction necessary. 3. Perpetuity, p. 2. Revision necessary. Fart II.— SHOULD CHARITABLE ENDOWMENTS BE PROHIBITED ? Evils of perpetual Charitable Endowments, p. 4. Turgot's argument, p. 7. 1. Difficulty of planning a Foundation. It involves (a) Detecting au evil ; p. 7. (6) Discovering the remedy ; p. 8. (c) Providing for supervision, p. 10. 2. Difficulty of adhering to plan. p. 16. 3. Difficulty of preventing Obsolescence, p. 17. Proves the need of Revision, but not of Prohibition, p. 20. Argument against Endowments created by Wills, p. 22. Confuses the Foundation's value with the Founder's merit. True province of Endowments. 1. To provide means for social experiments, p. 24. 2. To provide permanent unproductive materials for charitable use. p. 26. Adam Smith's argument against Educational Endowments, p. 26. Chalmers' reply. Error of confusing Associated Charities with Endowed Charities. p. 27. Part III.— SHOULD RESTRICTIONS BE IMPOSED ON THE CREA- TION OF CHARITABLE ENDOWMENTS ? Such restrictions depend on local and temporary considerations. Evasions of them by Secret Trusts, p. 32. I. Restrictions on Purposes op Gift. p. 34. May be effected either by (1) General rules, p. 38. (2) Special decision on each Foundation, p, 36. Would check experiments, p. 38. VI Injurious Chavities. 1. Doles, p. 40. 2. Gratuitous Schools, p. 52. 3. Fmindling Hosintals. p. 5:i. 4. Marriage Portions, p. 53. Useless Charities. 1. Apprentice-fees. p. 54. 2. Loans, p. 55. Doubtful Charities. 1. Almshouses, p. 66. II. Eestriotioks on Subject Matter op Gift. p. 66. Laws restraining charitable gifts of Land. The English Statute of 1736. Its causes and history, p. 68. Judicial extensions of its eifect. p.' 69. Arguments against such gifts. 1. Lands so given become inalienable, p. 78. Derivation of Mortmain, 2. Lands so given remain unimproved, p. 82. 3. Land yields smaller income than personalty, p. 84. 4. The title to land less secure than to personalty, p. 86. Arguments for them. 1. Land tends to increase in value, p. 87. But (a) that prospect raises its present price ; (i) the increase comes when least desirable. 2. Land is less easily lost. p. 92. Proposal that charitable gifts of land should be converted into money, p. 94. III. Restrictions on Extent of Gift. p. 99. 1. Limitations on the absolute amount, p. 100. 2. Limitations on the proportion of donor's wealth, p. 100. Excessive charitable gifts prompted by (a) Rpligious feeling, p. 102. (6) Vanity, p. 103. 3. Limitations on the quantum of right, p. 108. Prohibitions in 1736 of (a) any reservation ; (J) a power of revocation. IV. Rkstmctions on Persons by whom given, p. 110. V. Restrictions on Persons to whom given, p. 111. 1. Not to new Foundations, p. 111. 2. Not to certain classes of Trustees, p. 112. 3. Not to any unincorporated body. p. 112. Former advantages of corporations, p. 113. Their disadvantages, p. 116. YI. Restrictions on Time op Creation, p. 117, To prevent death-bed gifts. Vll VII. Rkstkictwxs OS Time of Taking Efi jxt. p. 122. Prohibition of posthumous and other prospective gifts. VIII. Bestrictions iMPOsnfo Formalities, p. 124. 1. Number of witnesses, p. 125. 2. Official character of witnesses, p. 125. IX. Restbiotioxs imposing subsequent Publicity, p. 127. 1. Tempoi-ary Advertisement, p. 128. History of the Irish Board of Bequests. 2. Permanent Registration, p. 130. Part IV.— THE SUPERVISION OF CHARITABLE ENDOWMENTS. To counteract the Principle of Cadudty. p. 133. 1. Geneitd periodical Supervision, p. 13i. Presupupses a Register of Charity Property. History of Lord Brougham's Inquiry Commissions. The recent I>igest of Endoxced Charities, p. 137. '2. Individual occasional Supervision, p. liS. Visitoi-s. p. 146. Court of Chanceiy. p. 148. Lord Cranworth's Board of Charity Commissioner.^, p. 15U. Provincial Charity Boards proposed, p. 154. Part V.— THE REVISION OF CHARITABLE ENDOWMENTS. To counteract the Priiwiple of Ohsoleacence. p. 160. Charities may become obsolete through changes 1. In the evil at which thej are aimed ; p. 161. 2. In their power to remedy it. p. 177. The'Bevision of such Charities is neither (1) Dishonest, p. 180 ; nor (2) Inexpedient, p. 186 ; nor (3) Unprecedented, (a) In legislation, p. 193. (A) In Chancei-y. p. 199. Even though it contravene (1) A Founder's expressed intentions, p. 201. (2) His presumed intentions, p. 201. (3) Other persons' intentions, p. 208. The Revising power of Chancery insufficient, p. 210. Any new Power of Revision must concede 1. A Term of InviolabUiti/ ; p. 214. 2. Limits to the extent of the Revision ; p. 2'Jil. Aud must be exercised by n special Body. To whom should the Power of Revision be entrusted ? p. 'I'^O. Evil of leaving it to Parliament, p. 225. Failure of the compromise of 1853. p. 226. Unfitness of Courts of Justice to exercise it. p. 229. Necessity for a special Board of Revision, p. 231. Private Powers of Revision, p. 233. Purposes to which to convert obsolete Charities, p. 236. (1) Most suitable forma of Relief, p. 238 ; (2) Most suitable Evils to relieve, p. 240. Vlll Part VI.— SHOULD THE STATE SPECIALLY FAVOUR CHARITABLE ENDOWMENTS ? 1. By pecuniary assistance, p. 244. (o) Grants to Charities, p. 245. (6) Grants for supervision of Charities, p. 246. (c) Remissions of taxation upon Charities, p. 249. Mr. Gladstone's argument against them. p. 251. 2. By relaxation of legal rules affecting (o) Their Constitution ; p. 256. (6) The Acquisition of their property ; p. 259. (c) The Protection of their property ; p. 262. (d) The Administration of their property, p. 265. Paut VH.— the reforms STILL NEEDED IN ENGLAND. In respect of 1. Supervision ; (a) Central ; p. 270. (6) Local ; p. 271. 2. Restriction ; p. 273. 3. Revision, p. 273. WMJ^ xt^xh k fr0prtg (Bikia fat €^KxMlt ox d^tx f wMk Wim, PART I. INTRODUCTION. Nil negat, et sese vel non posoentibus offert. — Claudian. At the outset of our inquiry, the question naturally arises ■whether there is any reason why property devoted to public uses should be subject to any other rules of law than those which affect all other property. " Charitable " uses, in the language of English law, are simply a class of public uses. To be public — that is, to bene- fit indefinite individuals— is essential to the legal idea of charity. A gift of a shilling to a poor neighbour, or of a hundred pounds to set up a grandchild in business, may be beneficent, and beneficent in the fuller sense of exceeding those reasonable expectations of his which it would be an act of mere justice to satisfy. In every ordinary sense it may be an act of ' charity.' But such gifts, or even a gift of money for such ten poor curates as the Bishop of London may select,* would not be called ' charitable ' by English lawyers, since each recipient is an ascertained person, or readily can be rendered such. Now as it is this characteristic of Tndefiniteness that * See Thomas v. ffovidl (L. R. 18 Eq. 198). 2 distinguishes public from private uses, it is upon it that whatever is necessarily peculiar and anomalous in the legal treatment of public gifts must depend. There is no definite person who can claim the due application of the gift. Then the law must supply peculiar and anomalous means for I securing that due application. Some measure of supervision is needed in the case of property devoted to public uses, which is unnecessary for private property. Gifts to public uses, again, are almost always characterised by a real or apparent Meritoriousness. Some rare instances may indeed be found — ^like gifts for diminishing the national debt, or for setting up a monument to the donor — in which the object is so futile or so personal that the gift will not inspire gratitude or admiration in even the most unreflecting observer. But in almost all cases a public gift has at least the semblance of a public benefit, and its donor is regarded by the majority of mankind with the reverence due to a ' pious founder.' This attribute of Meritoriousness, again, demands the attention of the jurist. The desire of public applause, the hope of divine favour, the impulse of benevo- lent zeal, may blind the Founder to primary but common- place obligations. As there is this special hazard of his being generous before he is just, the law may have to supply peculiar and anomalous means for limiting his generosity. Some measure of restriction is needed — at any rate in certain stages of a nation's spiritual development — in the case of property devoted to perpetual public uses, which is unneces- sary for private property. But there is a third and still more remarkable attribute, which, though far from being an essential characteristic of gifts to public uses, is nevertheless attached to the great majority of them, and to all that are of any considerable value. It is that of Perpetuity. A charitable Foundation is usually intended to escape the fate of all other human institutions, and to continue its work of beneficence for ever. As no human being can foresee the results which his beneficent scheme will actually produce when tested by the unknown circumstances of centviries indefinitely remote, the law must supply peculiar and anomalous means for securing the beneficence of those results by readjusting any errors which Time may. disclose. Some measure of revision is needed in the case of property devoted to perpetual public uses which is unnecessary for private property. Indefiniteness, Meritoriousness, Perpetuity — these, then, are the three peculiarities Avhich make public endowments require a correspondingly peculiar treatment at the hands of the legislator. Supei'vision, Restriction, Revision — these are the precautions which the three respectively render necessary. To dis'cuss in detail the reasons for taking each of these precautions, and the modes in which it may best be taken, must constitute the main purpose of this Essay. But before commencing such an attempt to determine the ideal form for a Jurispi-udence of Mortmain, there is a preliminary question which existing controversies make it impossible to ovei-look. We have to ask whether the law is justified in permitting public gifts to be made at all. The character of Perpetuity, though neither essential nor peculiar to public gifts, is nevertheless the most salient and the most important of their ordinary attributes. It is the source of the great paradox which lies at the root of the theory of charitable Fovmdations — a paradox so strange that centuries of painful experience have been necessary to enable statesmen and philanthropists to realise its truth. That paradox is this : that whilst charity tends to do good, perpetual Charities tend to do evil. Too often, misdirected by their Founder or misconducted by their administrators, they bless neither him that gives nor him that takes. All men are agreed in speaking reverently of the Good Samaritan. No one proposes to indict the Founders of Hospital Sunday for a conspiracy. Yet competent observers are agreed in regarding the Founders of some of the most important Charities of Europe as men who have inflicted grave physical and moral evil upon their race ; and some great publicists, eminent for philanthropy, have desired the legal prohibition of all philanthropic Foundations. This apparent contradiction must be explained at the outset of our inquiry. B 2 PAET II. SHOULD CHARITABLE ENDOWMENTS BE PROHIBITED ? He left to meaner minds the simple deed By which the houseless rest, the hungry feed ; His was a public bounty, vast and grand, 'Twas not in him to work with viewless hand. — Crabhe. Active benevolence is recognised by all monotheistic religions as the highest attribute of the Deity — ^by all schools I of ethics as the fairest virtue of man. It is the standard by which we gauge the worth of individuals, of nations, of ages, of creeds. Above the fair inhumanities of old religion we rank the charities of Christianity, even when dispensed by the dullest monk or the fiercest sectary. Above the temples of Athens and the palaces of Rome, we set the schools, the almshouses, and the hospitals with which the vulgar burgomasters of Amsterdam and the plain citizens of London have studded their streets. The Monthyon prizes recognise a nobler greatness than the Olympic wreaths. The life of Elizabeth Fry awakens keener interest than that of Catherine or of Hypatia ; and Howard's circumnavigation of charity excites a deeper thrill than Alexander's march for Tuiiversal conquest. Charity's scope is world-wide. Clarkson in a study at Cambridge pledged himself to the sei-vice of the black men of Africa ; Carey in his cobbler's stall resolved to spend his life for the pagan millions of Hindostan. Howard, as Darwin paints him, wandered " From realm to realm, with cross or crescent crowned. Where'er mankind and misery were found." The true lover of his race — " Driven by strong benevolence of soul, Will fly, like Oglethorpe, from pole to pole.'' Now a perfect philanthropy — " the love which scarce collective Man can fill" — must disregard the limits of time as utterly as those of space. The ardour of that sympathy, which can thus overlook all differences of colour, creed, and climate in its zeal, will assuredly not consent to he balked by intervals of time. The benevolence 'which thinks of the Antipodes will not forget the posterity of its own townsfolk. Moreover, yrhilst the latter duty is at least equally attractive, it has the advantage of being far more facile. To do good in a distant continent is only possible to great wisdom or great wealth ; but so long as land pays rent or capital bears interest, the humblest gift may be so bestowed as to do good in distant centuries. If, then, the philanthropist who devotes his span of life to human weal thus arouses our veneration and love, many of us will infer that still greater homage must await the still greater benefactor whose good deeds are so framed as to endure beyond his life, and perpetuate his liberality throughout all time. We shall be prepared to find endowed charities ranked by common consent amongst the noblest of human works, the praise of Founders the theme of the historian's most glowing pages, and the preservation and extension of these monuments of far-seeing piety the sedu- lous object of the jurist and the politician. Such an expectation, common as it may once have been, forgets that human benevolence is far greater than human wisdom. The Creator of man, in ordaining that his happi- ness should depend far more on his virtue than on his intelligence, mercifully placed it in his power to rise almost to the verge of his ideal of benevolence, whilst forbidding him even a distant approach to his ideal of wisdom. In such lives as those of Cakya-mouni, of St. Paul, of St. Francis, of Fenelon, of Ken, of Channing, pf Comte, the love of mankind may seem sublimated to a purity which — in the imperfect records that alone are open to human eyes — is undistinguishable from perfect altruism. But to none of them, nay nor to Aristotle, to Aquinas, to Bacon, to Goethe, nor to Burke, could we turn with confidence for enduring counsels to direct this benevolence, or for an intellectual theory of the methods of philanthropy, which should hold Q true through the chances and changes of even a single century. Hence it has too often come to pass that the scheme of benevolence whose far-reaching views and undying ambition seemed to commend it above all others to the awe and gratitude of mankind, has proved the most futile and most fruitless. " The perennial existence of bodies corporate," said Burke, " is a thing particularly suited to a man who has long views, who meditates designs that require time in fashioning, and propose duration when they are accom- plished." Alas ! that immortal existence is too often only the immortality of a Struldbrug — a perennial senility, a deathless dotage. Such a piece of work is man, so complex in needs and so mutable in circumstance, that the keenest eye cannot foresee for a generation either his surroundings or his wants. Some kindly heart that has throbbed through a lifetime of generous impulses, attempts to prolong its beneficence beyond the tomb, and to continue its charities after itself has ceased to beat. Too often the result will serve only to show that it mistook the problems it was encountering; and that the insight which directed it fairly accurately in dis- pensing kindness among chosen individuals in a well-known circle, could afibrd no trustworthy guidance for its course amongst the unknown multitudes of _ unknown times. For general benevolence it is as true as for personal enjoyment, that " the present hour alone is man's." But even if by happy accident the guess proves right, and the permanent supply turns out to have been addressed to a permanent need, there is still another peril to be feared, and this a yet more probable one. The hands that ought to administer the supply may prove weak or treacherous. The Founder's zeal cannot be devised with his lands ; his energy cannot be placed in mortmain along with his Foundation. From these two causes — the fallible judgment of their creators, and the ill conduct of their administrators — causes so frequent as to seem at times universal, the endowments of all countries have presented such a history of misuse, disuse, and abuse, as has often provoked a revolution in the estimate in which they were held by thoughtful men. Never elsewhere has that history been so tersely and brilliantly summed up as in an essay which Turgot contributed to the EncyclopMie* and which, after the lapse of more than a century, remains still the masterpiece of this great controversy. The purpose which Turgot had in view was no less than " to create a distaste for new Foimdations, and to destroy any lingering superstitious regard for the old ones." Let us retrace the line of arguments which he elaborated, and see if our modei-n experience does not even add to their weight. I. He begins by a description of the grave intellectual difficulties, the abstruse social problems, which must be weighed and solved by a man who aspires to be a Founder. Granting him to be a single-minded philanthropist, with no aim in view but the benefit of his fellows, that aim is no easy one to effect in perpetuity, and " un fondateur est un homme qui veut ^temiser I'effet de ses volont^s." At the very outset, simply to set his charitable work afloat, he must determine the best form for his Foundation to assume ; and to determine this involves the consideration of three pro- blems, each of them gi-ave. (a) Granting that he has already chosen a iield for his benevolence, and fixed upon the particular social evil which he seeks to assuage, he must still set to work to determine the true character of this evil, to diagnose the malady, and penetrate beneath appearances to its real essence. This is a task whose complexity the most profound thinker realises the most vividly. But until it is accomplished, there is every probability that the empirical philanthropist will confuse effects with causes, mistake the symptom for the disease, and end, like an unskilful physician, by removing the sore from the skin, but driving the poisonous juices nearer to the heart. It is better to bequeath money to drain the fens, than to found a hospital for malaria. * Art, Formation. (b) When the root of the evil is detected, it still remains to discover the remedy. This task is yet harder than the previous one. The remedy that seems most promising, may in reality be utterly impotent. Many founders have endeavoured to stimulate devotion by providing money or bread to be distributed as rewards for attending church, or participating in the Eucharist; but it may be doubted whether, in congregations gathered by the prospect of loaves and fishes, the glow of piu-e devotion was ever felt. Many founders have endeavoured to extend the bounds of human knowledge by providing collegiate fellowships free from all obligations but that of study; but it may be doubted whether endowment has done anything to stimulate research. Many a kindly man of forty years ago spent in buying bread for his poor neighbours, the guinea that would better have been given to the Anti-Corn Law League. Recent instances may serve to shew how utterly a Founder may mistake his own capacity, and may defeat an admirable pm-pose by planning an absurd scheme for carrying it out. Admiral B. M. Kelly in 1867 left £90,000 to found a school for sons of officers in the Navy. The lads were to have a first-class education up to the age of eighteen. But the head master's salary was only to amount to " the value of 100 bushels of wheat," which, as the Charity Com- missioners say, was "ludicrously inadequate." Many further difficulties arose "from the minuteness with which the testator, who was a sailor, and evidently knew little about schools, had given directions."* Similarly Dr. Swiney left an endowment for a prize essay in Jurisprudence, but ordered that the adjudicators should include all the members of the Society of Arts and their wives, and the members of the College of Physicians, and their wives ; the whole body of adjudicators to meet and to award the prize by show of hands! The will is still in force, but a kind of private arrangement has been made which establishes a different tribunalf So, again, in New York there exists a very * ParL Papers, 1870, xvii., p. 36. + Journal of the Society of Arts, xvii., 693. 9 wealthy endowment, with a very highly paid governor, for disabled seamen; but it is saddled with regulations so dis- tasteful to disabled seamen, that hardly any will consent to receive its assistance. The wealth goes on increasing, whilst the number of beneficiaries decreases.* Nor is the risk of impotence the worst peril. The pro- posed remedy may intensify the evil which it seeks to cure. The hand of Charity has too often worn a poisoned glove. Past centuries have seen a population of paupers created by monasteries that were founded to remove poverty. Our own century has seen philanthropists attempting to eradicate crime by Reformatories that made a criminal conviction the essential qualification for admission ; and attempting to promote female virtue by Refuges which would shelter no one till she had ceased to be virtuous. St. Bartholomew's Hospital-f- enjoys an estate in Essex which was devised to it to discharge the expense of providing dinners of veal for those convalescent patients who have been upon a milk diet; but the Governors of the present day humanely misappropriate their trust, and decline to undo the cures that their surgeons have effected. A Hereford- shire man once declared that the greatest benefactor to Herefordshire would be the man who should cut down all its apple trees, and carry away all its endowments ; for the former brutalised the popidation, and the latter pauperised them. J A third case is possible. The suggested remedy may bring about a new evil worse than the one it cures. Found- ling Hospitals, erected to preserve infant life, have demoralised whole cities by removing the first penalty of unchastity; (whilst, at the same time, by separating from maternal care the wretched offspring which themselves have thus called into existence, they produce an involuntary- infanticide, less guilty but far more extensive than that which they seek to prevent). Lying-in Hospitals, if we * Transactions of Social Science Association, 1869, p. 147. + This fact I owe to information received from one of the Governors. J Eeport of Popular Education Commission (8vo. edition), I., 461, 10 may trust a recent school of medical statisticians, have diminished the discomforts of maternity only at the cost of multiplying its perils by all the hideous hazards of pueiperal fever.* (c) But let us suppose that both the bane and the antidote have been discovered. The Founder has succeeded not only in detecting the true character and causes of the evil which he seeks to eradicate, but also in determining the aptest and most potent remedy. It still remains for him to devise means by which he can secui-e the effective and permanent application of this remedy through that long range of time for which his Foundation is to endure. He must foresee the opportunities of fraud and the facilities for neglect, and must provide for each of them. Stimulus, check, safeguard, coiTcctive — all are to be planned. He cannot beG[ueath his zeal along with his wealth.f Even the benevolence of an individual flags as years roll on. The glow of early enthusiasm may at last grow as cold in the philanthropist as it does in the lover. As the patriot may sink into a placeman, or the saint into a sinecurist, so the philanthropist is apt to find himself lose all the inspiration of his days of charity amidst the personal cares or desires which every year multiplies. But if this is true of each individual, how small is the chance of maintainincr lifelong enthusiasm throughout an entire group? Suppose the extreme instance of a corporation all whose membci-s, or a society all whose servants, commenced their laboiu-s at the outset with single-minded zeal ; it would still be impossible to maintain in permanence this univei-sal glow. What are we to anticipate in a succeeding generation, when, perhaps, not a single one of the successors has felt this zeal even at the commencement of his service ? If the duty is a gra- * " The risks of contamination of the air, and of the impregnation of the materials of the building mth morbid substances, are so greatly increased that the greatest care is necessary that hospitals should not become pesthouses, and do more harm than good." (Sir James Simpson, Woflcs II. 405.) According to the statistics which Simpson dtes (11. 345) from Lefort, the mortality of women delivered in hospitals exceeds that of women delivered at their homes Intheratioof 212to29. t Cf. Mr. Herbert Spencer's Study of Socioloyy, pp. 343-^346. 11 tuitoTis one, it will fall into oblivion — as the duties of almost all the Visitors of charities have done. If it is rewarded by a stipend, the stipend will be a source of corruption — as the stipends of almost all the Masterships of almshouses once became. Turgot suggests — and the rise of the successive monastic orders affords striking illustrations of the sugges- tion — that the very multiplicity of charitable Foundations is but a proof of their liability to abuse ; new Foundations having often been established simply because the old had grown so degenerate that it was easier to create than to con-ect. It is not necessary to take instances of inhumanity ; like Turgot's hospitals, where the attendants had grown callous to the sufferings which surrounded them, and " on a vu le meme lit etre h la fois le lit de la mort et le lit de la d^auche." It is not even necessary to rely on instances of dishonesty, or even of indolence. It is sufficient to remem- ber other hospitals, nearer home, where governors, humane, honest, and energetic, have squandered their resources upon palatial buildings and regal banquets; and have proudly pointed to their wastefulness as a proof of their loyalty to the Foundation and their respect for the Founder. "We are taught," says Mr. Hare, "by the universal history of Endow- ments that their administration has never corresponded with the original design."* No Founder has yet succeeded in devising a scheme which would, from within, secure the purity of its own working ; so fatal and so inevitable is the operation of (to borrow Mr. Lowe's apt phrase) 'the Principle of Caducity.' What does actual experience show ? Let us take the case of educational endowments. This may be regarded as the most favourable instance, both because the object is the most unexceptionable, and because each pupil has parents or guardians whose interest in his education renders them so many checks upon the operation of the deadly 'principle of caducity.' But even here there is authoritative evidence of the unsatisfactory result of Endowment. * Transactions of Social Science Association, 1869, p. 133. 1^ Upon the endovred pHmary schools, the Duke of New- castle's Commission on Popular Education reported in 1860> that " A large proportion of them are not turned to good account at present. . . It is not so much positive abuse that now calls for a remedy, as inefficiency, languor, and inadequacy of the results to the pecuniary means of the foundations. That in these respects remedial measures are needed, all the evidence before us on the subject conspires to show."* And, again, " Our general evidence as to the present state of these endowments and their present influence on education, we find almost without exception unfavourable, and decidedly pointing to the necessity of remedial measures."-|- That evidence included testimony from the Dean of Carlisle^ that " Endowments in connection with the schools of the working classes are, generally speak- ing, unmitigated evils. ... In most cases the evils of endowments are so great that parishes would be far better without any such schools at all." It included testimony from the Assistant Commissioner for a London District,§ who reported, " I have found a general dul- ness and want of life to be the general characteristics of endowed [primary] schools." It included the testimony of an Inspector of Charities, || who reported that " In general, unendowed schools are better administered than others. The interest of the master is too often more thought of than that of the scholars." It included the testimony of Bishop Villiers, who said, " I believe I state a fact which admits of no controversy, that, as a whole, schools with small endow- ments are worse than any others."ir Again, upon the endowed secondary schools, the Schools' Inquiry Commission reported in 1868,** that " It is clear, from the information which we have ourselves received, that there are few endowments applicable to secondary education which are put to the best use, and very many which are working to little or to bad use." And again, " We have * Report, 8vo. edition, I., i60. + I., 467. J I., 467. § I-, 461. II VI., 505, % I. 467. ** I., 106. 13 pointed out many important endowments where veiy large funds are producing at present Jittle or even no result."* Thus Thame Grammar School had two masters and one boy ;f whilst those at Sutton Coldfield (endowed with £4G7 a year), Mancetter (£288 a year), and Little Walsingham (£110 a year) were sometimes without any boys at all.t Whilst the evidence of their Assistant Commissioners included such testimony as the following : — " At Bath an income of £461 appears to hinder rather than promote the education of the citizens, and does nothing for the neigh- bourhood."§ "The fine Foundation at Market Bosworth, now £792 a year, is reported to be at present useless." i| " Gloucestershire and Herefordshire require special notice for the generally unsatisfactory condition of their endowed schools. Gloucestershire has seventeen Foundations for secondary education, and none of these are reported to be at aU efficient."ir " It is difficult to understand that Masham school serves any useful purpose." " A school of this kind (Easingwold) does great harm to the community." " This school (Bridlington) in its present state hinders rather than promotes the civilisation of the place." "Much of the vitality of Doncaster school is owing to the fact that it possesses none of the wealth which in so many instances proves to be an encouragement to indolence."** On the other hand, they report-f-f- that " Liverpool is remarkable alike for its entire absence of ancient endowments for secondary education, and for the efforts of its inhabitants to provide such education." And the Scotch Education Commissioners tell us that whilst " the most notable feature of the [Scotch] schools is the want of endowments,"!! yet "the Burgh and other secondary schools of Scotland are in a satisfactory condition and superior to the majority of the English grammar schools."§§ " In Scotland this class of schools are scarcely endowed at * Report, 8vo. edition, I., 435. t I., 262. J Cf. Report of Popular Education Commission, I., 486. § Report of Schools Inquiry Commission, I., 368. || I., 377. IT I., 386. ** I., 401. +t I., 345. tt Third Report, Pari. Papers, 1867-8, xxix., p. xvii. §§ p. xi. 14 all. In England the cost is borne by the endowment."* The endowments of the Scotch secondary schools seem only to constitute about one-seventeenth of their incomes. Or shall we turn from educational to ecclesiastical endow- ments, in the hope that at least in the sense of religious obligation there will be found an influence capable of counteracting the Principle of Caducity. Here, again, the result of endowments has so often been to paralyse the efforts which they were intended to promote, that the school of politicians at whose head Hume stands, have advocated the endowment of the Christian Church as the surest means of benumbing her. Where, indeed, the close connexion of State and Church by a national establishment of religion has seciired to the former a constant right of control over the endowments of the Church, it is possible to retaua the important aid of these endowments, and yet counteract their fatal tendencies. The parliamentary readjustment of the revenues of the Established Church laid the material basis of that spiritual progress which renders her position in 1879 so vivid a contrast to that which she held fifty years before. But in unestablished Churches, upon whom no amending hand can ever be laid from outside, the fatal influence of endowments is without a check, and Avill run its course to the hazard of religion — sapping the life of these Churches if they be weak, or, if they be strong, aggrandising them until they imperil the life of the State itself. The latter result will probably be witnessed in America by our children, unless the Western States contrive by rigid Mortmain laws to check the growing wealth of the Roman Church. Instances of the former result may be traced in the history of our own country during the last and the present century. -f- In the eighteenth century, when Parliament left the Established Church to the unchecked influence of her endowments, the consequence was that the number of Nonconformists increased in the hundred years from one-twenty-second of the total number of Churchmen to no less than one-eighth ; * Third Report, Pari. Papers, 1867-8, xxix., p. xvi. t See Dr. Stoughton's Religion m Englcmd, If., 377, following Williams' Church of the Restoration, II., 207. 15 though in the present generation the rate of increase amongst Churchmen is at least as rapid as amongst Nonconformists. Again, at the beginning of the present century all the other sections of Dissenters were estimated as being together only seven times as numerous as that section called indiscrimi- nately " Presbyterian " or " Unitarian " — whose chapels, unlike those of other Nonconformists in general, frequently had endowments attached to them.* It is a significant fact, that whilst that section still retains at least its old propor- tion of the Dissenters of the wealthy or the professional classes, yet its general advance has been so rapidly out- stripped by that of the unendowed Dissenting bodies, that they now possess at least forty times its number of adherents. (It may, indeed, be said, and with justice, that this slow development is largely due to the fact that the " Presbyterian " minister of the last century was seldom under the control of the general body of his hearers, or his communicants, but only of a small knot of Trustees. But then, it must be remembered that only the existence of endowments made it possible to keep up so oligarchical a form of government.) The attitude of English Nonconformists towards endow- ments may be gathered from the following summary of their experience of them : — " By the bequests of pious individuals, benefactions were from time to time made to some congregations for the more comfortable support of the minister. Where they did not amount to a sum large enough of itself for a salary, it was of service, especially in small societies where the people were unable to raise a sufficiency among themselves. But where- ever the benefaction was large enough for the minister's support, it has been found with but few exceptions to be * In 1830 it was calculated that of the total amount received in stipends by the Unitarian ministers, one-half was derived from permanent endowments. (T. S. James' Pretbyterian ChapeU, p. 574.) Even a century earlier, the Pres- byterian endowments were usually of larger amount than those of the Inde- pendents. (Halley's Lancashire Pwiianism, II. 382.) During the eighteenth century the Presbyterian section sank from being two-thirds of the whole body of Dissenters to be only the above-mentioned one-eighth of them. (Bogue and Bennett, 2nd ed., IX. 545 ; T. S. James, p. 10.) 16 •detrimental to the cause which it was designed to cherish. When the [people are considered as cyphers, they act as cyphers; they appear to feel but little concern for the welfare of the society, and have not displayed the same zealous activity and lively interest as when everything depended on themselves. So uniform has been the operation of this cause, that where ministers possessed of opulence would receive nothing from their hearers as a reward for their labours, it is but seldom that such congregations have been in a flourishing state. A listlessness and want of public spirit have pervaded the whole mass; so dangerous is it to exclude Christians from the performance of a duty." " The benefactions have proved injurious in another way. When such a fund has fallen into the possession of an unsuitable minister, who by his sloth, pride, or error, has rendered himself disagreeable to his congregation, they have no means of procuring his removal, and he continues performing his stated services, while the cause of religion is decaying, and his audience dwindling away before his eyes. Whereas, had the minister's support been derived from the people, necessity would soon have compelled him to depart and make room for another much better than himself."* II. The triple problem thus described will tax all the resources of a trained intellect. To solve it successfully demands the highest political wisdom. But mental and moral greatness are too seldom found combined in one man for us to expect that many founders will be qualified for the task which their benevolence has led them to attempt. Let us, however, suppose that we find a man whose head is worthy of his heart, and who is competent to contrive and plan all that his philanthropy may suggest. Is it certain, even then, that his benevolence and intellect will be per- mitted to accomplish all that they have the power to effect ? Are there no hostile influences which may bias the judgment and impair the triumph? Alas, there are — influences so common that scarcely any heart is exempt from them so plausible that scarcely any conscience is alive to them. The * Bogue and Beanett'a History of the Dissenters, iii,, 348. 17 love of applause, the hope of fame, the pride of family, the caprices of association, may dictate many a modification or condition that will mar the wisdom of his designs, or may suggest some new project that will supersede them altogether. A lady is buried in St. Bartholomew's churchyard. West Smithfield, who left a fund to be distributed amongst aged women every Good Friday ; but she added the puerile and cruel requirement that these infirm cxones should pick up their sixpences from the surface of her grave. III. Wisely to frame a Foundation, and arrange its working details, recjuires, then, that the Founder combine with his benevolence a mind unusually rich in political wisdom, and a judgment unusually free from petty in- fluences. But even when such a man has accomplished such a scheme— even when all its details have been wisely planned, and all conceivable provision made for ensuring perpetually their faithful execution — even then the task is not completed. He has provided for the present ; he has provided for the future — so far as its perils may arise from! within ; but it still remains to provide for all that the future may bring about outside the Foundation. He has to cope with the constant and inevitable operation of — what I will* venture to term — 'the Principle of Obsolescence.' He must devise means for the future revision and readjustment of his schemes. If this be not done, time will soon set at naught his ephemeral design. The foundation may survive in useless perpetuity for ages after the evil which it was designed to remedy has disappeared for ever. So limited is the range of human foresight, that no founder can be sure that he is not providing a permanent supply to meet a merely transient need. The men who left property for ever to redeem English slaves from the Moors, or to exempt their parishes from' paying Fifteenths, were not more shortsighted than the average of their contemporaries. Or the current of hostile circumstances may take a differ- ent turn, and, without affecting the evil, may so affect the remedy as to make it only exaggerate the evil, and thus turn C 18 the antidote into a bane. A petty endowed school, that originally made its village a speck of light in the darkness, comes at last, when the land is covered with a network of primary schools, to be the means of keeping that village darker than all those around, by preventing the establish- ment of an efficient school, with State inspection. The Founders of mediaeval times did not foresee that such changes were inevitable, and that it was imperative to provide for a revision. The example of Dean Colet shows us, however, at how early a date the danger and the remedy were detected by experienced men.* At the present day no Founder can fail to be alive to them. Yet the comparative rarity of such provisions as those of Colet or Hibbert shows how little effect the knowledge of these dangers has in mitigating the vanity which leads a man to overrate his own foresight, and the self-love which makes him care little for good being done if it is not done in the way he has himself invented. Let us suppose, how- ever, that such provision has been duly made. To what extent is it likely to prove effective ? Turgot points out three causes which impede the operation of all schemes for revision. First of all, there is the long period which usually elapses after a Foundation has become useless before its uselessness is detected. The persons who are immediately acquainted with the charity are too much accustomed to its working to be struck by its defects ; whilst those who are not imme- diately acquainted with it have little chance of observinf the defects. Hence Foimdations sometimes become actually hurtful before anyone suspects that they have even ceased to do good. Secondly, when the need of revision has been detected and demonstrated, there is still the difficulty of determinino- the proper character and extent of the modifications a difficulty which is often enhanced by the fact of the Foundation being one of a large class upon which any such modification will be apt to tell, either indirectly or directly. » Infra, Part V. 19 Thirdly, when the scheme of modification has been fully planned, there is the difficulty of obtaining its adoption in the teeth of the vested interests — lawful and unlawful, definite and indefinite — that have grown up around the old system, and offer resolute resistance to any attempt to initiate a reform, lest it should end in an assault upon them- selves. We had already learned that even the best framed Foundation is likely, in the changes of societj- , to lose its early value, and to become useless, if not injurious. We now learn that, even under the best framed powers of revision, a considerable period of time is likely to elapse after it has lost its value, before that loss Ls eflfectually remedied. This elaborate survey of the perils that environ a Founder might well suffice, as Turgot prayed, " concourir avec I'esprit philosophique du sifecle, a ddgouter des fondations nouvelles et a ddtruire un reste de respect superstitieux pour les anciennes !" Already a sense of these dangers was abroad, and had found concrete expression in the Edit des Mains- mortes of 17io, which forbade all religious houses to acquire any more lands without a Koyal licence, and to acquire any property whatever under Wills — an edict which continued to be the law of Lower Canada until the present reign. The doctrines of Turgot sank deep into the mind of Europe. In the next generation, the author of The Wealth of Nations proved them to be applicable even to the least objectionable of all foundations — those devoted to educational uses. Half a century afterwards, when the reconstructive reaction had set in, Chalmers,* in a memorable volume, grappled with the arguments of Adam Smith; and Stuart Mill -(■ condemned the extreme position of Turgot as a temporary exaggeration. But Turgot's arguments have efiected at least a modification in the general attitude of educated men towards endowed charities, whilst his views are still maintained, in all their integrity, by authorities as skilled in practical politics as * On Educalional and Ecclesiastical Establishments. t Jurist, 1833 ; reprinted in the first volume of his Dissertations. See his Autdbioyraj.liy, pp. 182-3, C 2 20 Mr. Lowe, * and in speculative politics as Mr. John Morley. The latter has recently recorded his opinion that Turgot's essay on Foundations " still remains the most masterly dis- cussion that we possess of the advantages and disadvantages of endowments. Even now, and in our own country, the most fertile and beneficent work to which a statesman of energy and courage could devote himself, would be the application of the wise principles which were established in the Eiicyclopedie." f The premises of Turgot are, indeed, unassailable. The perils which he enumerates have been proved real by painful and universal experience. But his sweeping practical con- clusion is no necessary consequence of his premises ; and it is possible to admit all the dangers he fears without accept- ing the drastic remedy he recommends. We are compelled to concede to him that many endowed charities are, by their very constitution, injurious ; that others, by various social changes, have ultimately been rendered injurious ; and that, even in the best, there is an inherent tendency to become worthless. We cannot dispute the conclusion of Mr. Lowe, that " endowments carry in their own bosom a principle of caducity and decay."^ But does the truth of these generalisations involve the inference that we must prohibit all endowment ? la there a single human iTnpulse, usage, or vnstitution, of which they do not equally hold true ? Turgot's arguments do, indeed, lead us irresistibly to the conclusions that we must not permit endowments to be created indiscriminately ; that we must never cease to sur- round them with the spur and bridle of authoritative supervision; and that we must provide duly for their periodical readjustment. But these conclusions are appli- cable to every human law, and to every relation that himian laws can create. If their application to endowments seems novel, it is only because endowments have too often been treated as an exception to the most fundamental rules of * See his Middle-Clail Education, to which J. S. Mill replied in the Fort- nightly Eeviem, voL xi.; and his evidence before the Schools Inquiry Commis- Bion, Questions 6541 and 6556. t Diderot, I. 186, J Middle-Clan Education, p. 10, 21 law and polity. Beyond these conclusions Turgot's argu- ments cannot logically be pressed. They afford no warrant for his inference that all endowments must be prohibited, and that the utmost organisation which can be conceded to benevolence is that of voluntary associations supported by periodical subscriptions. That endowments are apt to be misused is ground enough for setting safeguards on their use. It is no ground for prohibiting it. To abolish Foun- dations, instead of taking the trouble to control them, is like breaking a watch-spring for fear it should run down. It is the same wasteful policy that hanged criminals when it might have reformed them. If all endowments have had defects, so have all other human institutions ; and it is from the nettle Mistake that we pluck the flower Experience. "In this, as in most questions of state, there is a middle. There is something else than the mere alternative of absolute destruction or unreformed existence. ... A disposition to preserve and an ability to improve, taken together, would be my standard of a statesman. . . . He does not deserve to rank high, or even to be mentioned, in the order of great statesmen, who having obtained the command and direction of such power as existed in the wealth, the discipline, and the habits of such corporations as those which you have so rashly destroyed, cannot find any way of con- verting it to the great and lasting benefit of his country. On the view of this subject a thousand uses suggest themselves to a contriving mind."* It will be time enough to check charitable gifts for mere checking's sake, when we find that they have absorbed as much of the nation's wealth as charity can find a public use for. In England, at any rate, there is no fear of that epoch aiTiving without our knowing it ; for the Mortmain deeds enrolled in Chancery, and the returns and records of the Charity Commission, keep us sufficiently informed of the rate of increase. How remote a time it must as yet be every man knows who has visited the closes of Edinburgh, the wynds of Glasgow, or the courts of Bethnal Green. * Burke's Re/lections. 22 Until it does arrive, we shall be as little justified in prohibiting the owner of property from giving it to benefit the many as from giving it to benefit an individual. In the one case, as in the other, we may content ourselves with restricting him to the reasonable limits of human foresight, and forbidding him to fix irrevocable benefits upon persons so remote that he can fonn no estimate of their merits or their wants. The wealthy Endowments that abound in England have no doubt been amongst the causes of her pre-eminent advance in civilLsation, as well as a potent factor in shaping the national character. Very instructive is the contrast between her and modern France, since the Eevolution swept away all the ancient establishments for public uses, and left no intermediate link between the State's coffers and the private piu-se. ' Charity.' we may be told, ' should begin at home ;' but, to use a trite reply, there is no reason why it shoTild end there. Granting that a man should provide first for those of his own household, this will involve no more sweeping measure than that of fixing a " Legitim,"* i.e., a proportion of property which he cannot bequeath away from his family. And our experience of human nature may suffice to assure us that, even in the absence of any such measure, family love or family pride will usually be found far stronger than public spirit, and that in but few instances will general benevolence counterbalance private affection. Vanity, indeed, may do so ; but against vanity it is easy to legislate, and to forbid, if need be, the conjiection of a founder's name with his foundation. A singular argument has often been urged against legalising the establishment of Foundations by acts of last Will. Such gifts, it is said — and with justice — since they cost the giver nothing, are not worthy to be ranked as acts of charity. There is no merit in them. The worth of a Charity must be measured, not by what the donor gives, but by what he gives up. * Infra, Part 111., sec. iii. 23 However true this ethical judgment may be, it is a fallacy to infer that, because an act calls for no special moral eulogy, it ought therefore to be legally prohibited, or even that it must necessarily be unworthy of special legal favour. It is the very duties which are so simple as to be least meritorious to do, that it is the most criminal to omit. The duties which we go out of our way to praise a man for obserying, are precisely those which the lawyer dismisses with indifference,, as of " imperfect obligation." The State, whose very existence depends upon taxes which are only paid under compulsion, cannot consistently refuse endow- ments on the mere plea that the gift of them is not inspired by heroic virtue. It must rather, as Crabbe suggests, deem itself " Happy, when fears to public spirit move, And even vices do the work of love." Very common however, has been this confusion between the objective public usefulness of a charitable gift, and the subjective merit of the giver. It is a confusion common both amongst the advocates and the opponents of endow- ments. On the one hand, the politicians of 1736 denounced and prevented many gifts of high public utility, because there was no merit in the giver's motives ; on the other, the opponents of the charity reforms of the present reign have defended many injurious institutions merely from admiration of the meritoriousness of the ' pious founders.' Even Mr. Gladstone, in attacking the exemption of endowed charities from taxation, treated this want of merit as a consideration worthy of being impressed upon the House of Commons, and reminded them that " what a man wills on his death-bed, when he can no longer keep it in his own hands, is not charity in the same high and sacred sense — the only legitimate and strict sense in which the gift of money can be charity — which the word carries when a man gives what is his own to give or to enjoy. The Will does not take one tittle from the pleasure of possession and accumulation, nor from his personal enjoyment, but operates after his death ; so that, without the smallest effort, or the 24 most minute surrender, he may achieve the fame of being a Founder." * But it must he remembered that in many cases a charitable bequest is not the substitute for a life of beneficence, but the consummation of it; the Founder having habitually given away in his lifetime all that he prudently could, and reserved for his bequest only what he could not prudently have given away, either because he needed it for his own support, or because he found it desirable to accumulate all possible experience before irrevocably determining the details of his Foundation. If we are correct in maintaining against Turgot that endowments, in themselves, are not to be rejected, it will not be difficult to determine 'the province in which they may advantageously be permitted. Their principal office appears to be, to forward those public works whose necessity the more acute observers have begun to detect, but which the public, whether by voluntary association, or as organised in the State, cannot or will not as yet undertake to execute; in other words, to supply those needs which only a minority — it may be a minority of only one man — is as yet convinced ought to be supplied by bystanders, and not left to the individual who is in need. Hence, in a progressive society the province of endowments is always shifting, as the organisation of the State gathers strength and scope. Thus in England, the interests of Pauperism, of Highways, of Primary Education — which once were dependent on the protection of individual Founders — have passed into the direct care of the nation, and no longer aiford a sphere for the operation of endowments. The creation of an efficient police has removed all need for those charities which Sir Francis Moore mentions, "to provide the poor with weapons for the defence of their houses." On the other hand, the abolition of compulsory church-rates has opened a new sphere for endowments, to maintain the parochial ecclesiasti- cal fabrics. In a word, the main office of endowments is to affijrd a field *■ Qliidstone's Financial Statements, pp. 430, 432, for experiments in benevolence. It will, perhaps, be objected that so narrow an office removes all need for perpetuity, and confines endowments to a limited — though it may be a considerable — duration. We would reply that a limited duration is all that can safely be conceded to a Founder's schemes ; that the vain ambition of perpetuity has been the chief cause of the evils of Foundations ; and that in the acceptance of this temporary character lies the solution of the controversy between endowments and their assailants. But for the funds which endowments afford, how many sociological questions are there which could never have been eflfectually tested by experiments, whilst mere deductive reasoning would never have sufficed to solve them. What is the best mode of providing for orphan children ? If we assemble them in large numbers in boarding schools under strict discipline, will the effect be, as some founders have anticipated, to produce a peculiar purity and intensity of moral and religious, character? Or will the plan serve only to extinguish the children's affections, on the one hand, and on the other to stunt their mental growth by confining them to a monotonous daily experience wholly at variance with the actual scenes which await them on their departure into the world outside ? What, again, would be the results if we adopted the opposite plan, of boarding them out as individuals amongst separate families? Or if we combine the two plans, and place the children amongst families, but group all the family households, as at Famingham, upon a single charity estate ? It must, however, be remarked as a curious fact that in the province of mental education, endowments do not seem to have been employed to the extent that would have been I anticipated, in making educational experiments. Mr. Fitch,* I a most competent witness, says that he has not been able to ! find a single instance in which any new or original system of education has been directed by a Founder's will. Still it must be remembered that the man who is philosophical enough to find a new plan of instruction, is rarely rich * Journal of the Society of Arts, 1869, p. G85. 26 enough to found it. But it cannot even be claimed that endowed schools have done much in supplying a field for originality on the part of the teachers employed in them. It was not in them that Pestalozzi, Fellenberg, and Jacotot worked out their theories. The extraordinary educational experiment of Matthew Davenport Hill and his brothers was tried in a private school. In fact, the Schools Inquiry Commissioners go so far as to say that private schools are " the natural field for teachers who hold peculiar views, . . . the men who most often make improvements, and discover new methods."* Adam Smith, in dealing with the question of educational endowments, admitted that schools for " the lower orders " miffht weU be subsidised ; but contended that all other eases should be left to the ordinary laws of supply and demand. Why should a Founder go out of his way to pay for what would pay for itself ? Chalmers replied that the principle of Free-trade had no application in the provinces of morals and intellect ; for in them the need is always in the inverse ratio to the conscious demand — the man most ignorant is the least likely to ask for instruction. Free-trade may safely be relied upon wherever three conditions are present^the consumer must have money enough to buy, must care enough for the article to buy it, and must be judge enough to know if what he buys is good. In the case of education it too often happens that eveiy one of these conditions is wanting. A further important sphere for endowments lies in sup- plying the permanent materiel of a charitable institution ; things w^hose large cost renders it difficult to obtain them out of the subscriptions or the rates of a single year. A benefaction of this kind is not only peculiarly useful, but is peculiarly free from those hazards of misapplication which beset income-producing capital. A bell, a bridge, or a building offers comparatively little scope for the perversions of time or the misconduct of trustees. Many such benefac- tions are still needed in England. Even amongst our endowed giummar schools it was found in 18G8 that " at least * Report I., 304, 27 half are without doubt insufficiently — and probably only a quarter can be considered fairly — provided with site and buildings."* Even Mr. Lowef admits that " as the failure of endow- ments arises from the impossibility of overcoming the tendency to languor and decay in human agency, any appropi'iation of money to buildings, to libraries, or to museums would be free from the objections I have urged." And there is good waiTant from experience for approving of the application of endowments even to further purposes than the mere suppiy of fixed capital. The Public Schools Commission reported J that " To a large popular school, so long as it is large and popular, a permanent endowment is not of essential importance ; but there can be no doubt that such an endowment is of great service in enabling any school to provide and maintain suitable buildings ; to attract to itself, by exhibitions and other substantial rcAvards, its due share of clever and hard-working boys ; to keep up by these means its standard of industry and attainment, and run an equal race with others which possess this advantage; and to bear, without a iTiinous diminution of its teaching stafij those iluctuations of prosperity to which all schools are liable." And it is reported by a special Commissioner that " the best parochial schools in Scotland are those assisted by the Dick and Milne bequest ' — though for a special reason, since " the ma.ster cannot get his share of that endowment without passing a great many scholars, and being a meritorious teacher."§ The result of our inquiry is thus, upon the whole, to justify the legalisation of Endowed Charities in a well- ordered State. But in a nation which, like ours, is no less remarkable for the importance of its charitable Societies than for that of its charitable Endowments, it is important to guard against a popular confusion of ideas, and to insist upon the diflference of character between the two. Had we * Report of Schools Inq. Com., I., 260. t Middlc-Clase Education, p. 28, t Pari. Papers, 1864, xx., p. i. % Ibid, 1873, viii. 195. 28 failed to find any justification for the Endowments, the failure would not have involved any condemnation of the Societies. Even the extreme objections of Turgot are aimed only against the permanent endowment of charities, not against their conduct by organisation and association. The ad- ministration of charity upon the gigantic scale may, indeed, possess material advantages over its administration by the detached efforts of unconnected individual benefactors ; not merely from the additional wealth that is brought to bear, but also from the greater wisdom which the greater choice of leaders will probably bring to bear upon its direction, and from the economy which united organisation secures by preventing " the overlapping of relief." We are too apt to be misled by appearances, and to suppose that amongst charities the great distinction of type is that which separates the direct and therefore minute exercise of individual per- sonal beneficence, from its administration on a large scale through the hands of a paid staff. But to the eye of a discerning politician the real distinction lies lower, and does not depend, either upon the scale of the beneficence or even upon the question whether it is exercised mediately through subordinates or personally by the donors, but upon the presence or absence of the donors' supervision. A large charitable society may be as completely imder the control of its subscribers as if each of them gave his money directly to the ultimate recipient of the bounty; and all that is needed is that the contributions be sufficiently large to awaken the subscribers' interest in their application. (For charities supported wholly by the driblets of a " Hospital Sunday" would be under no eflTective control ; no contri- butor's mind would follow the fortunes of the coin he put in the plate. During the present year two criminal prose- cutions have disclosed the state of things that prevails in Children's Homes which are supported by casual alms obtained in house to house visitation, and which conse- quently are entirely unchecked by those who support them). If the subscribers detect an abuse they can easily interfere, 29 whilst in an endowed Charity any interfering critic is considered an intruder ; and if their interference fails, they can easily enforce their criticism by withdrawing their subscriptions. On the other hand an endowment, large or small, is by its very nature placed beyond this control from the outset of its existence ; and the utmost resources of the statesman must be taxed to supply artificial substitutes for the prudence and the zeal which are buried in the donor's grave. But where there are subscribers, the Founder never dies. The criticism of* Endowments, therefore, even if it go to the full extent of Turgot's condemnation, does not involve any depreciation of the virtue of beneficence, or even of its exercise upon a gigantic scale. Public spirit is still to be preferred, none the less, to parsimony, and charity to churlishness. The one point is that the almoner must add to his charity, knowledge ; that he must direct his gifts wisely, and that he must sedulously avoid exaggerating the range of his wisdom. Where the evil to be grappled with is one which exceeds the resources of an individual, it will still be open to him to seek allies. A charitable partnership is in itself as little objectionable as a commercial partnership, and may be as necessary. It is only necessary that the periodical contri- butions be sufficiently large to make the contributor care about their application ; and that they fall due at intervals sufficiently frequent to make any loss of confidence promptly felt. We then obtain an instrument of beneficence free from most of the drawbacks and dangers that surround Endowments, and possessing a fiexibility of application and an expansibility of wealth which can seldom be expected in Endowments. It works more cheaply and honestly, it varies its work more aptly and more promptly, it enlarges or diminishes its resources in closer proportion to the demands of its work. If an abuse creeps in there is every chance of its being promptly detected. If money is wasted on dinners or architectiire, there is every chance of the waste being criticised. And no land is withdrawn from efficient cultiva- tion or rendered unsaleable. 30 But however perfect be the form in which the charitable aid is applied, Turgot insists that its application must be limited to those purposes which arc strictly " Occasional," or Accidental; such, for instance, as the relief of distress which has been caused by a death or by an epidemic, the improvement of a town, or the local encouragement of agriculture. On the other hand, those " General" evils which fall upon all the nation alike, independently of time or place, like the ordinary needs of food, clothing, and instruction, it should be left to their own foresight to provide against. " Les hommes sont-ils puissamment int^ressfe au bien que vous voulez leur procurer, laissez les faire ; voila le grand, I'unique principe." (But, as we have already seen, this principle of Turgot's may lead us far astray, if, like him, we extend it to all cases of objective interest, forgetting how often men fail to subjectively realise, to fed an interest in, their deepest interests.) These evils are too wide for any man, any association, any endowment, or even for the State to grapple with ; though the State may assist in reducing them to their natural limits by removing all laws which artificially check industry or instruction or interfere with the enjoyment of their fruits. If a man eats without working, it must be at the expense of some other man who does work ; and it is therefore impossible, by any arrange- ments, to permanently relieve any extensive proportion of the community from hunger except by their own exertions. But, to quote the jingling proverb, " If everyone will see to his own preservation, Then very easily you may preserve a natiou." Similarly in the case of mental needs, charity, says Turgot, can seldom have the wealth to do much by such expensive methods as the establishment of schools or colletres ■ although by establishing prizes it may very cheaply stimu- late education throughout a wide circle, just as the State by requiring an intellectual test from candidates for its em- ployments, may affect the level of education throughout an entire kingdom. 31 PART III. SHOULD RESTRICTIONS BE IMPOSED ON THE CREATION OF CHARITABLE ENDOWMENTS? What has he left ? and who's his heir f ' I know no more than what the news is ; 'Tis all bequeathed to public uses.' ' To public uses ! There's a whim ! What had the public done for him ? Mere envy, avarice, and pride ; He gave it all, but first he died. And had the Dean in all the nation No worthy friend, no poor relation ? So ready to do sti'angers good. Forgetting his own flesh and blood !' Swift. Lines on his ovm Death. Our inquiry has now led us to the conclusion that the lawgiver should not utterly prohibit charitable endowments. We may therefore proceed to consider the measures which he must take with regard to them, for Restriction, for Supervision, for Revision. First, then, let us ask in what cases it will be desirable for him to place any Restraint on their creation. There is no portion of our subject upon which it is more difficult to lay down general rules than this. The various circumstances of various nations or centuries will produce a wide diversity in the extent and character of the evils to be guarded against, as well as in the nature of the appropriate safeguards. The need for new charitable enterprise, the con(Htions of land tenure, the strength of family expecta- tions, the prevailing degree of religious and philanthropic zeal, the attitude of the clergy — all these varying elements must be guaged by the statesman who at any given moment has to frame an appropriate law of Mortmain. In some countries the public need, or the private apathy, or the private wisdom, may be so great that the law is called upon for no restrictions. Thus in the United States of America 32 our Mortmain laws have not been generally adopted ; * and corporate bodies are freely allowed to acquire property with no restrictions except such a.s may be contained in the charters or enactments by which they have been incor- porated, and which often prescribe a maximum limit to the real and personal property that the individual corporation can hold. It is a familiar objection to all legal restrictions upon charitable gifts, that they tend only to drive benevolent people to commit ' frauds upon the law,' and evade the prohibitions by means of secret honorary trusts. The testator will give his property, apparently as a beneficial gift, to some person who will be morally pledged to him to apply it to the discharge of the Trusts which the State will not permit to be openly attached to it. But whilst we may admit that every statute of mortmain is sure to be evaded in many instances by arrangements of this kind, it must be remembered as well that such evasions will always be limited in number by the difficulty of finding persons in whose honour the testator has the absolute confidence that such a trust implies, as also that they are free from much of the evil against which a statute of mortmain is directed. By the very conditions of the case, the honorary trustee is rendered the absolute owner of the property, with all the rights and powers of ownership ; and thus all the much- dreaded evil of inalienability, all the tenacity of the ' dead man's grasp,' entirely disappears. The hazard, again, of a testator's preferring his scheme of charity to the interests of his family is certainly no greater when his plan is efiected by a secret instead of a legal Trust ; and, indeed, it is rather lessened, because, as the world at large will have no means of knowing that the gift has been accompanied by any charitable directions, their censure of the injustice of the gift will be all the more severe; and few testators are altogether indifferent to the prospect of posthumous censure. The common objection to secret Trusts is, that the bene- * In Delaware the Act of 1736 his, however, besn adopted. Jievued Code of 1852, ch, 39, =. 10. 33 ficiary has no security for their being fulfilled. But as, by the very hypothesis, the Trust is one which the law desires to prevent, this objection is of no weight. Such trusts are often employed in England at the present day. Sometimes it is for the purpose of devising land to charities which have no power to take lands under a will, the devise being made to some one who is expected to transfer the land to the charity by a deed inter vivos. Sometimes it is for the kindred purpose of obviating the uncertainties of life, by securing to a charity money which the devisee is to realjge from the sale of lands, if the testator does not live long enough to convert them into money, and so to render them capable of being bequeathed to charity. Sometimes it is for the purpose of saving the legacy duty on a bequest of money to a charity, the bequest being made to some relation so nearly akin to the testator as either to have, like his wife, to pay no legacy duty at all, or at least to have to pay it at a less rate than the 10 per cent, which the charity would have to pay. In the two former cases the gift will be set aside, as a fraud on public policy, if the devisee can be shown to have assented to the secret Trust.* But in the third case, the Trust, although not enforceable by law, is not prohibited by law, and it may be avowed with impunity upon the face of the gift. The following form for this purpose is supplied in a familiar collection of Prece- dents : — " I bequeath the sum of £ unto my wife C. B, absohitely. But it is my wish that the said sura be distributed by her my said wife, according to her discretion, for public charitable institutions and private individuals. Nevertheless, 1 declare that such the expression of my wish shall be precatory only, not imposing on my said wife any legal or equitable obligation, condition, trust, or election whatever, or interfering with her full and absolute right of property in relation thereto. And I direct that the said legacy shall be fully paid out of such part of ray personal estate as may legally be devoted to charitable purposes, and shall be paid out of that fund in preference to all other pecuniary legacies bequeathed by this my will." A further objection to these restrictions lies in the abundant litigation to which they give rise. Kinsfolk who * Sweating v. Swcetirvj (3 N. R. 240) ; Jmca v. Badley (L. R. 3 Ch. 362). ' D 34 o would not have disputed a testator's discretion in distribut- ing his gifts among themselves, feel little scruple in disputing any gift which passes over the whole family in favour of unknown strangers. Of course every additional requisite which the law imposes on the validity of a gift must afford another chance of its validity being successfully disputed. It has even been suggested that if the " Mortmain Act " of 1736 were repealed, charities would gain as much by the prevention of litigation about gifts already valid, which then would always reach them without paying the costs of a Chancery suit on the way, as by the new gifts which \mder the present law would be manifestly invalid. The various restrictions which States may see fit to impose upon the creation of charitable endowments may be grouped under nine heads, accordingly as they relate to (1) the Purposes for which the endowment is given ; (2) the Nature of the subject matter of the gift ; (3) the Extent of that subject matter ; (4) the Person by whom, and (5) the Person to whom it is given ; (6) the Time when the gift is made, and (7) the Time when it takes effect; (8) the Solemnities accompanying it, and (9) the Publicity which it must receive. These several topics require detailed con- sidemtion. I. — The Purposes of Endowments. What restrictions is it desirable for the State to impose upon a founder in the choice of a benevolent purpose to which to devote his endowments? It will be denied by no one that some such restrictions will be necessary, that purposes may commend themselves to the imagination of even a truly benevolent man, which nevertheless no prudent State could permit him to f oi-ward by a permanent endow- ment. Even the English law furnishes us with precedents of gifts to public uses which have been set aside as contrary to public policy. One testator bequeathed £5000 to be applied in discharging offenders who had been committed to prison for non-payment of fines under the Game Laws, His 35 bequest was declared void.* Another left a legacy to provide those inmates of a workhouse who were above the age of sixty, " with one pint of porter." Unless the local guardians sanctioned such a gift, it would be a contravention of the Poor Law Amendment Act.f A third made a bequest "towards the political restoration of the Jews to Jerusalem and to their own land." It was held void as being incompatible with international comity. + The gifts that have been declared invalid on account of their " supersti- tious " character are innumerable.§ Thomas Gray's bequest of five shillings a year to the incumbent of Melbourne, Derbyshire, for reading his Will after the prayers on every St. Thomas's Day, || is of but doubtful validity in the face of the Act of Uniformity. Until the Toleration Act of 1689, all gifts for the support of Dissenting worship would have been void.lT The English law has in fact distinguished gifts to public uses into three classes ; there are those which, as we have just seen, it prohibits, there are those which it permits to be created under certain conditions, and there is a still more favoured class which, as we shall very shortly see,** it exempts from these conditions. This policy of discrimina- tion is undoubtedly sound. But it is to be desired that full advantage should be taken of the accumulated results * Thrupp V. Collett (26 Beav. 125). + AU.-Gm. V. Vint. (3 De G. and S. 704). J Hdbershon v.Vwrdon (4 De G. and Sm. 467). § See Shelford On Mortmain, pp. 88-116. II Seventeenth Report of Charity Inquiry Commiesionera, p. 296. IT See Lord Mansfield, in House of Lords' Journals xxxi. 475. It is not generally known, but we shall subsequently see the importance of remembering, that long after the Toleration Act had legalised Dissenting worship, the legality of Dissenting charities was matter of grave doubt. In 1713 Lord Harcourt doubted if a gift for the Anabaptist poor would be valid. " It might," he said, " be a means to draw Dissenters from the Church. It is one thing to tolerate Dissenters, and another to establish a perpetual fund for their support " (2 Ves. Sen. 274). What judgment he finally gave is not known. No clear decision on the subject appears until Lord Hardwicke, in 1748, upheld a Quaker charity ; {Att.-Gen. v. Aiidrews, 1 Ves. Sen. 225). As late as 1751 Sir J. Strange heard argument on the question, and said, " I own I am surprised there have been no other cases " (Att.-Gen. v Cock, 2 Ves. Sen, 273). ** Infra, p. 68 and p. 77, d2 3G of modem economical experience, by readjusting the lines of demarcation. On the one hand, the exemptions contained in the Act of George II. are, as we shall see, open to con- siderable criticism ;* and, like some of those which have since been added to them, were selected upon no basis of principle, but merely as convenient concessions to powerful applicants. On the other, our increasing insight into the problems of social existence, enables us to detect the fatal tendency of many charities which the law has not yet branded as contrary to public policy. An important practical question would arise in determin- ing the mode of readjusting our lines of discrimination. It might be effected simply by general enactment of the Legislature, specifying the particular classes of foimdations, or conditions in foundations, which are to be prohibited, permitted, or favoured ; and the experience of a quarter of a century has supplied the Charity Commissioners with ample materials for determining those classes. Thus the School Inquiry Commissioners proposed-j- that Parliament should prohibit all founders of schools from giving the teachers a freehold in their offices, or guaranteeing them any further income than a sum proportioned to the grade and size of the school. On the other hand it might be effected by the more flexible plan of submitting each individual Foundation to the judgment of some public authority which (within, if need be, certain general rules prescribed by Parliament) should exercise its own discretion as to permitting or prohibiting its establishment. In the Board of Charity Commissioners, England of course already possesses a tribunal peculiarly skUled in these delicate 'considerations of public policy, and with special means of obtaining that local information on which the determination of every such case must depend. Where the Charity is to be founded by a will it would be desirable to permit the testator, though scarcely desirable (as has been proposed) to require him, to gubmit his scheme for prospective sanction or rejection * Infra, p, 61, t Report I., 599, 37 during his lifetime, in torder that, in case of its rejection, he may have the opportunity of framing an alternative one. In a country where the law makes no general provision of a Legitim* for the families of testators, it would be desirable that the proposed authority should be directed not to sanction any charitable bequest without considering, not merely its intrinsic merits, but also its effect upon the near relatives of the founder. Lord Selborne has expressed himself as "very much inclined to favour " the adoption in England of this plan of the individual authorisation of Endowments.-f- It prevails on the Continent, and it appears to .work well. It was adopted in Austria by an ordinance of Maria Theresa,} and exists throughout France, Germany, and Italy. In France in 1814, it was enacted that every gift of personalty to a greater amount than 1000 francs, and every gift of realty, must be expressly sanctioned by the State. § " To enable even a personne civile to accept an endowment, an express authorisation of the administrative authority is in each case required, and the deceased donor's natural heirs are heard. They are not heard on any point of Law ; if any such arises it goes to the ordinary legal tribunals ; they are heard on the question whether the bequest was a proper one for a man in the testator's condition of family fortune to make. In some cases it is the pr^fet who gives this authorisation, with the advice of the conseil de prefMure ; in general, and always when there is opposition on the heir's pait, it is the Council of State." || In the elaborate outline for a new Law of Charities which was sketched twenty years ago by Lord Hatherley,ir great scope is given to the right of individually authorising or vetoing the Founder's choice of purposes. If his gift is * Swpra, p. 22. t Report of ScliooU Inquiry Commission, Evidence, Q. 14,215. t Report of Mortmain Committee of 1844, Pari. Papers, 1844, x., 607, Evidence Q. 681-716, 1451. § Sirey, Zes Codes Annoties, art. 910. II Arnold's Schools and Universities on tJie Continent, p. 21. IT Transactions of the Social Science Association, 1S59, p. 191. §8 made by will, and to an amount exceeding £200, it must either be for a purpose which has already been sanctioned both in principle and detail (by a Commission under the statute of Elizabeth, or by Chancery, or by the Charity Commission), or else must be treated as a merely temporary- arrangement which will hold good only for the period of " a life in being and twenty-one years afterwards " conceded to private settlements, and then must be revised by public authority. If the gift is made inter vivos, it must (1) be made to some existing charity which has been sanctioned by one of the three bodies already mentioned, or (2) must be for one of certain -highly eligible purposes (e.g., a school or hovspital), which the Act will specify, or else (3). its principle must be submitted to the Charity Commissioners by the donor, and must receive their sanction, or that of Chancery upon appeal from them: and in any of these three cases, the details of the scheme must be submitted to the Charity Commissioners for their sanction. But to the plan of authorising Charities individually, there is at least one serious objection. If we consider the habits of routine which so easily beset all Boards, we shall be apt to conclude that if any public authority were intrusted with an inordinate right of veto upon all proposed charities, the prospect would be very small of any novel experiment being allowed a trial. Very instructive is the example of Brown's bequest to the University of London, for the establishment of " an institution for the care and treat- ment of animals and birds useful to man ;" which ran the gauntlet of discussion both in Chancery and in Parliament. The present state of veterinary science is confessedly low. The diminution of the sufferings of the brute creation is usually regarded as a laudable work of mercy. The preser- vation of our domestic animals is a matter of everyday economical interest. Mr. Brown's proposal might therefore seem to be one which had every claim to respect and approval. But it was novel. It was genuinely an experi- ment. The mere fact of its novelty ensured its condemna- tion at the hands of many men, even of humane character 39 and of reforming tendencies. The Bishop of Down and Connor denounced it as "a very foolish and eccentric bequest."* Mr. Fitch f declared that, if carried out, it would " incur the ridicule of all the Universities in Europe." What hope would such a bequest have had of being recognised by any Board, or Department, or Commission, when the pigeon- holes of the office contained nothing similar, and the file afforded no precedent? Yet, as Mr. J. S. Mill says, "a person willing to employ part of his superfluities in esta- blishing an Animal Hospital, is not bom once in several centuries." The uniqueness of the bequest provokes hostility ; though it is this very uniqueness which constitutes its claim to protection. (This example may serve to show how much darkness stiU hangs over the whole theory of charities ; since, besides aU the divergences of opinion with respect to principles, there are equal divergences of opinion as to the application of those principles to individual instances. A curious illustration is afforded by the case of Archbishop Abbot's Hospital at Guildford, which Sir Francis PalgraveJ singles out as a chief object of eulogy, whilst Sir Arthur Hobhouse§ is content to take it as one of his four typical instances of failure. Its details we shall subsequently discuss. ||) But if a Charity Department would not be likely to give its sanction to an Animal Hospital, how slight a chance would there be of its permitting the still bolder experiments which recent years have seen attempted by philanthropists of independent habits of mind. There is the Cornell University, which requires every student to do daily manual labour for his support ; there is the Temperance Hospital in the Hampstead Road, for the treatment of disease without alcohol ; there is the Homoeopathic Hospital ; there are the schools for teaching Phonetic Spelling ; there will soon be a Cremation furnace ; there may some day be another Arminian Nunnery, after the manner of Charles I.'s time. * Hansard, clxxxviii. 495. [A.!). 1867.] + Fraser's Magazine, 1869, p. 8. X Mortmain Committee's Report of 1841. Evidence, Q. 144. § Journal of the Society of Arts, xvii., 680. || Infra, Part V 40 All these are experiments in subjects of the utmost import- ance ; but which of them could hope for mercy at the hands of a Charity Board ? Whichever mode of authorisation, however, were adopted, we may anticipate to some extent the new classifications which either Parliament, or any sanctioning Authority, would be likely to frame. Their special favour would probably he reserved for charities devoted to education or to the cure of disease. Their prohibitions would probably be extended to all charities devoted to the distribution of Doles, and, unless in exceptional districts, to all devoted to Loans or Apprenticeship fees. It is possible that at no distant date public opinion would advance to the point of prohibiting all religious endowments which were devoted to the maintenance of narrowly defined theological tenets. There is probably no point in the whole subject of chari- ties upon which so general an agreement would be found amongst all who have studied the topic, as the question of the good or evil of Doles — endowments for periodically distributing amongst a large number of people, small gifts, whether of money, food, or clothes. Economists, politicians, charity oflEicials, parochial clergymen, are agreed in utterly reprobating such foundations. This reprobation is, of course, a modem view, the result of long experience and long reflection, one of the many apparent paradoxes which the complexity of social and economical forces nevertheless renders demonstrably true. There can be no doubt that a man who clothes the naked and gives food to the hungry is usually doing a beneficent and meritorious act ; and it is natural to infer that the wider the sphere and the more permanent the time through which this work of feeding and clothing is carried on, the greater in proportion will be the beneficence, if not the merit. Christendom for eighteen centuries has looked with reverence upon the Good Samaritan's gift of two denarii ; how must it regard the beneficence of Henry Smith, who has caused 23,211 gifts of 4s. lOd. each* to be bestowed annually for * Pari. Papers, 1876, xx., 23. 41 ever. Paradoxical as it may seem, educated modern Chris- tians still venerate the Good Samaritan, but pronounce Henry Smith to have been a public nuisance. Experience has taught them three points of essential difference between the alms of an individual and those of a Foundation. The former are usually given with discriminating reference to the circumstances, the character, and the prospects of the recipient; but in the latter the distributors have seldom either the time, the zeal, or the intelligence thus nicely to adjust the relief to the need — and the wider the distribution the more indiscriminate it becomes; the vaster the "Charity" the worse its operation. The former, again, are not to be permanently counted upon, and even whilst the donor retains life and wealth, any misapplication of his first gift may dissuade him from repeating it ; but the perpetuity of the latter renders them a permanent inducement to unthrift. Lastly, the former, as the evidence of personal kindliness, awaken that goodwill between class and class which is the cement of society ; but the latter are received without gratitude as merely the inevitable results of machinery that was set in motion by some long-forgotten hand. Of course it is possible, and perhaps only too common, for an individual's private charity to be given with an unwisdom that clothes it with much of the evil of a Dole. It may be given with a coldness or an insolence that renders gratitude impossible. It may be given with the recklessness that relieves every mendicant who asks. It may be given with a continuity that is even worse than that of a Dole, because it is apt to raise expectations of permanence which, unlike a Dole, it raises only to disappoint. Mr. Cumin tells the story of an old lady who gave away £20 worth of flannel every Christmas. The Christmas after she died the poor people came to the rector and complained, "If we had known she was going to die, we should have saved our harvest money, and bought flannel." And, conversely, it is possible for a Dole— as at Dorking, in Surrey, and at Single- ton, in Sussex* — to be given with a painstaking intellx- * Pari. Papers, 1868-9, xvii., p. 38. 4^ gence that raises it to the value of private charity. It can best be done by obedience to Target's precept of relieving only Occasional and not General distresses ;* singling out those eases in which the poverty has come by unexpected accident, and admits of ultimate recovery. It may thus become the means of preventing many persons who are as yet deserving and industrious from learning to rely upon the Poor Laws, and 'touching the unclean thing.' But in how few cases can a founder expect to find the adminis- trators of his Dole possessed of the leisure, tact, and zeal for all the investigations that such administration as this will involve ? Looking to the general superiority of individual alms, which a man gives out of his own pocket and within a circle of his personal acquaintance, over those given from an Endowment, we may pronounce it to be not one of the least of the evils of Doles that their existence in any district tends to repress that private charity which would be far more benefici&,l. They not only operate for evil, but they supersede what might have operated for good. Doles, again, produce evil effects upon the very persons who receive them. The confident expectation of a gift, a some- thing which even he who will not work may eat, supersedes to that extent the necessity, the desire, and the habit of working. A shortsighted Founder concludes that it must be good for a man to have a shilling, or a loaf, or a pair of shoes given to him. He forgets that by slackening the man's habits of industry such gifts may in the long run materially lessen the number of shoes, loaves, and shillings that will come into his possession. It is an old remark that for every pauper that Doles prevent, they create three. Too often each distribution is followed by a week of debauch. Moreover, the Dole is usually not obtained by the pauper's mere application, but by an application accompanied with some phrases of piety or flattery, and some assertion of poverty, an assertion whose truth it is usually well known is not likely to be strictly investigated. Habits of deceit- * Supra, p, 30. 4S I fulness, servility, and hypocrisy are thus readily strengthened or engendered ; and Doles, as Mr. Cumin says, " create liars, or slaves, or both." In too many instances the Founder has expressly attached the condition that the recipients shall have attended at some specified act of Divine worship ; as if the interests of Christianity could be forwarded by multi- plying the disciples of the loaves. This, says Mr. Cumin, "is probably one of the worst conditions which can be attached to gifts. It is intended, no doubt, to promote religion — the danger is that it not only promotes hypocrisy, but excludes many poor people who although they do not or cannot attend Divine service, are much more in need of the chairity than those who obtain it."* The curate of a [ parish in Berkshire, where there are many bread charities given in the church, reported that there was not a Dissenter in the district, but that the gift had a bad moral tendency .-f Such at HilderstoneJ is Sir Thos. Hunt's gift of 1625, of 2d. apiece weekly, in bread, to six poor people who "after service should come every Sabbath day to the stone where his father lays, and kneeling should say the Lord's Prayer, and pray to God for the King and Queen then reigning over them." Such also is Norrice's charity at All Saints' Church, Leicester, to forty-one poor people, who are to receive on St. Bartholomew's Day, 4d. each, " and to depart, glorifying God ;" whilst the minister is to have 4d. for exhorting them, after the second lesson at evening prayer, " to praise God for his mercy in providing for the poor," and is " to make choice of some fit psalin for that purpose, desiring the people to sing that psalm with him."§ Such, again, is Joseph Allen's gift for the annual relief " of such poor women as are most regular in their attendance during divine service at the church of Gorey, in the county of Wexford." || They have also an evil eifect upon the persons who do not receive them. These, who perhaps have also been led by them into the same laziness or the same lies as the actual * Report of Pop. Educ. Comm., iv., 330. + IIM., vi., 513. J Charity Inquiry Commissioners' Sixteenth Eeport, p. 333. § Thirty-second Eeport, v., 103. || Pari. Papers, 1820, iv., 127. 44 teceivers, may, unlike the actual receivers, have to suffer considerable pain from disappointment. Thus, at Salisbury, on an election to five vacant pensions in Popley's Charity, there were sixty-two applicants. For each who succeeded, eleven had in vain the anxieties of canvassing, and the vexation of failure.* " In every district," say the Poor Law Inquiry Commissioners, "the discontent of the labouring classes is proportioned to the money dispensed in poor's rates or in voluntary charities."*!" All these things, it may be said, a Founder may have foreseen, and have deliberately resolved to hazard. But the most remarkable results of Doles are those indirect ones which utterly frustrate all the possible expectations of a Founder, and completely invert the effects he intended to produce. His object was to diminish the number of the helplessly poor of his favoured district. If the means he devoted to this object were at all extensive, they will result in greatly increasing that number. The prospect of the Dole attracts from all the neighbouring districts the most unsettled or most shiftless of their pauper population. The Foundation becomes, as Chalmers says,J an "adhesive nucleus ' round which the poor accumulate and settle, misled by vague hopes of benefits which, in most cases, it will fail to confer on them. At Draycott, in Somersetshire, a small village has been actually created by the foundation of a Dole.§ Moreover, the Founder's express object of adding to the means of each poor recipient is usually defeated by this very operation of the Dole. The influx of outsiders, who come in hopes of sharing in the distribution, raises the rents of houses and lodgings, and increases the expenses of the recipient by an amount exceeding all that the Dole adds to his resources. Jn some Cambridgeshire villages it has been noticed that the cottages let dearer because each cottager * Report of Popular Education Commission, vi., 481. + First Report (1834), p. 28. J Cliriatian arid Cine Economy. Works xv. 98. § Report of Popular Education Commission, iv. 329. Third Report of Inquiiy Commissionera, p. 425. 45 gets a loaf every Sunday. The poor man when treating with the landlord says, " You ask too much." " But you cannot have your loaves unless you live in this parish." * In such districts the Foundation that was meant to relieve the poverty of the poor, results only in increasing the riches of the rich. Still more evident is this result wherever the recipient of the Dole is also in receipt of outdoor relief from the Guardians, and has his allowance diminished by whatever amount he gets from the Charity. The Foundation only serves to reduce the poor-rates, and so subsidise the rich. The evil of a Dole is usually in the compound ratio of two quantities : It varies directly with the number of the recipients, and inversely with the amount bestowed upon each. The smaller the capitation sum given, the more harm it does. A penny is at once spent in beer, when a pound would have gone to the tailor's. The greater the number to whom these sums are distributed, the more indiscriminate will be the distribution. The best Doles are small ones belonging to small hamlets, where the circumstances of every applicant are well known. Just as, where the number of applicants is large in pro- portion to the number of administrators, the distribution is necessarily made with little discrimination, so also is it when the money to be distributed is excessive in proportion to the number of applicants. Hence some cases like that of Bewdley, where an Inspector reported of the annual " Mill and Meadow Money," that " no person who applies in time is refused. Many tradesmen receive it ; some paying £100 a year rent have it." And like that of West Moulsey, where he reported : " Loaves and a barrel of beer are dis- tributed yearly on November 13th. The distribution takes place at daybreak. The baker's cart drives across a field within the manor, and the loaves are thrown out, and picked up — in fact scrambled for by seventy or eighty people, usually persons going to Kingston Fair. . . . The beer is not given quite so indiscriminately. About thirty or forty persons connected with the place form a string, and, as they J Gentleman's Magaiine, Hi. 290. 46 pass by the barrel, hand the drinking horn from one to the other, till the cask is empty."* Among the most minute doles we may reckon the Penny Dole of Walsall, in Staifordshire, where f "there is an annual payment, called Moseley's Dole, of a penny apiece to all the inhabitants of the parish of Walsall and of the adjoining parish of Rushall. Three persons are employed to make the distribution, who begin on New Year's Day, and go through the parishes, giving a penny to every inmate of every house, whether permanently or accidentally abiding there. The earliest mention of this Dole is in the 36th Henry VIII., when £7 10s. 9d. discharged it." At Hamp- stead there is one still smaller. There is an endorsement on one of the indentures of gift to this parish, stating that £40 had been given by a maid deceased, to the intent that the Churchwardens of Hampstead for the time being " should provide and give to everyone, rich and poor, great and small, young and old persons, inhabiting this parish, upon every Good Friday yearly for ever, one halfpenny loaf of wheaten bread."! Whilst at Kidderminster an annual sum of 40s. was distributed in farthing loaves.§ Some Doles have been allowed to be scrambled for, but per- haps the most indiscriminate of all distributions was that at Bulkeley, in Cheshire, where " the Overseer had the money changed into pence and half -pence, and placed in a peck measure, inviting all the poor to take a handful ; which was done. Those who came last of course got none." || There was also the shameful scene at Prince's Risborough, in Buckinghamshire, where, at six o'clock every Christmas morning, a bull, a boar, a sack of wheat, and a sack of malt were given to the poor. The practice whilst it lasted is reported to have produced " much intoxication and riot. The poor are said to have paraded the town during the whole night preceding the distribution, with an incessant clamour, effectually banishing all repose. On the following * Cited in Hansard ccv. 1507. t Charity Inquiry Commissioners' Ninth Report, p. 573. J Twelfth Report, p. 147. § Twenty-fifth Report, p. 538, II Thirty-first Report, p. 587. 47 morning they marched in crowds to Mr. Grubb's house ; and these assemblies often comprised many strangers from a dis- tance, as well as parishioners. On the doors being opened, they rushed to the feast prepared for them with so little decorum and forbearance, that often in their zeal for priority they inflicted wounds on one another with their knives. The whole of the remaining portion of Christmas Day is also stated to have been spent by many of them in public- houses."* The abstract picture which we have thus drawn is abun- dantly corroborated *by the authoritative testimony of experience. The Poor Law Inquiry Commission of 1833 reported thus : — " As to the administration and effect of those Charities which are distributed among the classes who are also receivers of the poor's rate, much evidence is scattered throughout our appendix, and it has forced on us the con- viction that, as now administered, such charities are often wasted, and often mischievous. In many instances, being distributed on the same principle as the rates of the worst managed parishes, they are less pernicious than the abuse in the application of the poor rates only because they are visibly limited in amount. In some cases they have a quality of evil peculiar to themselves. The majority of them are distributed among the poor inhabitants of particular parishes or towns. The places intended to be favoured by large charities attract, therefore, an undue proportion of the poorer classes, who, in the hope of trifling benefits to be obtained without labour, often linger on in spots most unfavourable to the exercise of their industry. Poverty is thus not only collected, but created, in the very neighbour- hood whence the benevolent founders manifestly expected to make it disappear."-f- And one of the Commissioners describes their experience thus : — " We met with charitable foundations everywhere in old urban districts ; and every- where found their operation and tendency to be to create the misery they were intended to relieve, whilst they did " Twenty-sixth Report, p. 107. + First Report, p. 204. 48 not relieve all the misery they created. ... In Spital- fields they created a population born in charity, nursed in charity, fed in charity its life long, doctored in charity, and, after a wretched life, buried in charity."* Whilst another expressed himself convinced that " any trustee of a public charity for the distribution of Doles who, instead of distri- buting the substance as intended, consumed it in good cheer for himself and his friends — and any trustee of a charity for foundlings who, instead of applying the substance to those purposes, kept a mistress with it — really produced less immorality, and was pro tanto a benefactor to the public."-f The last of Lord Brougham's Charity Inquiry Commissions reported similarly : — " We have frequently had occasion in our reports to make remarks on the indiscriminate distribu- tion of charities in sums too small to confer any real benefit, and without any care in the selection of proper objects. . . . It would be of great advantage if there were some competent authority to direct the application of charities of this description to purposes of education, or of some other substantial benefit to the poor." J A generation afterwards, the Duke of Newcastle's Com- mission on Popular Education reported that, § " Bj' crowding into the favoured neighbourhoods the poor raise house rent and the price of lodgings on themselves so as in great measure to nullify the relief which the charity afibrds." And the Schools Inquiry Commission reported in 1868 || that, " In far the larger number of cases Doles, in money or kind— and particularly in towns, where they often are of large aggregate amount — encourage pauperism, attract an idle and helpless population, and do no good whatever." Whilst our modem Charity Commissioners say, "Doles produce ultimately more poverty and misery than they relieve. The true way of giving relief is by helping the poor to help * Journal of the Society of Arts, xvii. 686. The evidence of Mr. Stone, the Rector of Spitalfields, will be found in the Report of 1833. t Edinburgh Review LXIII, 495. J Report, Vol. xxsii., pt. I., page 5. % Report I., 517. || Report I., 216, •19 themselves; by endeavouring to give them health and strength of body, intelligence and cultivation of mind, and habits of thrift, foresight, and self-respect." * Among the most striking individual instances of the evil working of Doles may be cited those of Bedford, Lichfield, and Canterbury. At Bedford a Charity was founded in the reign of Edward VI., and endowed with £40 a year, which in 1853 had risen to £12,000 a year. Its working has recently been reformed; but in 1833 a Bedford clergyman reported to the Poor Law Inquiry Commission,f that " There are very few labourii^ men in my parish who save anything. The great Bedford Charity has a bad effect on the minds of all the working classes. They are discontented because they think that there is an ample provision for the poor whenever they are thrown out of work. I have heard an engineer resident in the town say, that he dare not employ a Bedford hand, they are so idle. A stranger has lately contracted to light the town with gas. He declared that of all the places where he had undertaken such works he never met with such an idle set as the Bedford men. Thus they show by their actions that the charity is no real blessing to them. But the class above the working people are also affected by this charity to their injury. They conceive they shall be provided for in the almshouses if ever they come to poverty, and they are not careful and provident, but rather extravagant, in their way of living. In times of popular excitement the poorer sort will speak out, and say the paupers' charity should be theirs, and if they had justice done them they need not work at all." In 1868 Bedford had a population of 1.5,000, whilst out of its Charity income no less a share than £3035 was spent on marriage portions, apprentice-fees, almshouses, and doles. The doles were voted by the town itself to be injurious ; whilst the marriage portion and apprentice Charities were reported by the Schools' Inquiry Commission as being, " at the best, a waste of money, and probably worse." | The Charity income, their Assistant Commissioner reported,§ * Pari. Papers, 1867-8., xxi. 20. t First Report (1834) p. 28. J Report I., 530. § I., 531. E 50 " colours and determines the whole life of many in Bedford. It bribes the father to marry for the sake of his wife's small portion ; it takes the child from infancy, and educates him' in a set form; settles the course of his life by an apprentice-fee ; pauperises him by doles ; and takes away a chief object of industry by the prospect of an almshouse." At Lichfield, where the Inspector found upwards of £800 a year distributed in Doles, he reports: — -'The charities have turned half the inhabitants of Lichfield into beggars ; hence idleness, drunkenness, poaching, and thieving. It is impossible to exaggerate the evils they produce. ... I have received testimony from some of the most intelligent inhabitants, who take the greatest interest in the welfare of the poor, that the charities produce a vast amount of beggary, idleness, lying, and profligacy, and destroy the feelings of self-respect and independence, and thus are great instru- ments of demoralisation in Lichfield."* At Canterbury the Inspector found a population of 18,000, a Dole income of about £2000, and a total charity income of £9100. He reports i* that, for the Doles, " the candidates, successful and unsuccessful, may amount to 1000, representing [households with] a population of four or five times that amount. They are almost all women. They could earn the money over and over again while canvassing for it A wine merchant said that on the day of the distribution of the ■10s. gifts, he received seventy sums of 10s. over the counter." J On one occasion the circumstances of four hundred recipients of these 10s. gifts were investigated, and one hundred and forty-five of them proved to be undeserving of the money, either as being of bad character, or as being comfortably off.§ In 1579 Richard Watts created by his will a charity at Rochester, to provide a house "with six several rooms with chimneys, and six goo4 mattrasses or flock beds and other * Pari. Papers, 1868-9, xxi., 5i. t Pari. Papers, 1871, xvi. 21. f " There is a London parish in which every year £200 is given away in shillings and eighteenpeuces ; and on the days when the distribution is made the gin-palaoes iu the neighbourhood hire additional waiters to sell the gin which is called for by the recipients o£ the money." (Hansard, clsix.' 182.) § Report of Popular Education Oommission, VI. 517 51 sufficient furniture, to lodge poor travellers or wayfaring men, being no common rogues or proctors."* They were to lodge a single night, and to receive f ourpence in the morning to help them on their way. Charles Dickens has thrown a halo of Christmas romance around them in his "Seven Poor Travellers." But the mayor and corporation of Rochester reported in 1869 that " having for many years seen, and being well acquainted with the operations of this charity, they are satisfied that harm instead of good would be fostered and encouraged by its extension, and that the persons who have resorted to the house are generally of the lowest and worst description.""!- To purposes thus productive of evil an enormous amount of property is nevertheless still devoted. The income from endowments which is now distributable amongst the poor of England and Wales in small gifts of money or kind amounts to £383,029 per annum, independently of the £552,119 which is spent in almshouses and pensions.^ In many districts the proportion of recipients to the total population is so high as to show that the Dole has produced an extraordinarily large number either of persons in want, or of persons who are willing to accept unearned money even when they do not want it. Thus a Charity Inspector reported, in 1860, that at Whittlesey, in Cambridgeshire, he found 1603 doles, of 2s. 2fd. each ; and at Fulbourne, in the same county, he found a charity income of £409, of which £129 was given indiscriminately in clothes, £155 indiscriminately in bread, and £60 was given to the poor who attended the parish church.§ Elsewhere, in a parish of 1150 persons, an endowment of £800 a year was devoted to Doles. II Generally admitted as is the evil of Doles by all com- petent observers, the Charity Commissioners find, neverthe- * " Proctors " were persons sent out to solicit alms on behalf of others. By an Act of 39 Eliz. they were enacted to be rogues and vagabonds. + Pari. Papers, 1870, xxvii., 21. t General Digest of Endowed Clm-iiies. Pari. Papers, 1877. xxvi. 16. § Report of Pop. Educ. Commission VI. 513. II im. vi. 331. E 2 52 less, that new "bequests to establish them are still not unfrequent."* A hundred men can see the pleasure which a beggair derives from the gift of sixpence, for one who has the patience to think out the probable influence of the sixpence upon the beggar and his neighbours. On the other hand, some of the old Doles have recently been brought to an end under the Endowed Schools Act,-)- which authorised the Commissioners, by the consent of the Trustees of the Charity, to transfer them from purposes of pauperisation to those of education — though not permitting any other modification of them. Closely akin in character and eifect to Doles are Charities for general gratuitous education — the indiscriminate distri- bution of mental, instead of tangible alms. Apart from any considerations of the remoter evil of artificially multi- plying the clerk class to the diminution of the artisan class, the immediate effects of such Charities are injurious. The school is flooded with children whose parents attach no value to education, and afibrd the master no aid. As no fees are paid for attendance, neither parent nor master feels an interest in enforcing it. Other children, again, are kept uneducated by their parents, in hopes of their being admitted to this free school — a hope often ultimately disappointed. And if the district be thinly populated the school actually keeps down the level of instruction, by preventing the establishment of some more efficient private school. Hence the Endowed Schools Com- missioners say, " There is no point connected with schools on which the testimony of experienced persons is more uniform or emphatic than the ill effects of gratuitous education independent of merit." The Schools' Inquiry Commissioners found hardly any instances where it seemed to work well ; and report that, " Indiscriminate gratuitous instruction has been demonstrated to be as invariably mischievous as indiscriminate almsgiving ; and a desire to retain the one must be ascribed to the same inconsiderate benevolence as that which keeps up the other. On this * Pari. Papers, 1876, xx. 23. f Infra, Part V, 5g point there is an extraordinary concurrence in the opinions expressed by the weightiest authorities."* The evil becomes of course still greater in the case of schools which gratuitously provide food or clothing for the children. Such assistance is of the utmost value in the case of orphans who have lost their bread-winning parents ; and even in the case of other children it is often desirable, if it be aflforded to only a partial extent. But to relieve a father altogether of the duty of maintaining a child is seldom an unmixed gain to him, and is usually a serious moral loss to it. Inthe case of Foundling Hospitals these evils are aggravated by others still greater. If the Hospital, like that in London, be small in proportion to the population who look to it, and be most carefully administered, it may do good. But if it be not, its existence stimulates unchastity, as the Continental returns of illegitimacy serve to show; whilst instead of saving infantine life, its ultimate result is to multiply infantine deaths. For whilst the rate of mortality is higher amongst the children whom it receives than if they had been left to a mother's care, the children whom it cannot receive have been multiplied on the chance of its receiving them, and cases of infanticide increase accordingly. As in the case of Doles, the expectation of benefiting by the Charity influ- ences the conduct of far more persons than can actually obtain the benefit. The Dole creates more paupers, the Hospital more foundlings, than its resources can relieve. Even more injurious than Doles, unless administered with the greatest care, are Charities for providing Marriage Portions ; like Mr. Raine's Foundation, which has been at work for a century and a-half , providing an annual marriage portion of i£100 for a girl marrying in Wapping or Shadwell. Too often they operate only as a bribe to hasty and improvident marriages, and cases are not wanting in which an adventurer has sought out a bride for the sake of the portion, and has deserted her immediately on receiv- ing the money. Sometimes the portion is even mortgaged * Report I., 593. 54 before marriage.* In 1846 it was found that of 1400 mar- riages which took place at Rome, 800 were endowed by- charitable Foundations; the dowry being often won by means that did little credit to either the patron or the favoured bride.f Less productive of injury indeed than Doles, but still less productive of benefit, are Charities for paying appren- tices' premiums. The annual amount applicable for this purpose exclusively was estimated by Mr. Hare J in 1857 at £31,670, whilst a further income of £69,200 was applicable to it amongst other objects. Mr. Cumin, in 1860, estimated that £50,000 a year of Charity revenue was actually spent on premiums for apprentices.§ Yet the practice of going through apprenticeship " has almost ceased to exist in our greatest seats of industry," || now that the introduction of machinery has simplified so many processes, and the minute subdivision of labour has made each individual's share of his craft too small to take long to learn. Moreover even in trades where apprentices are still taken, there is little need to pay a premium. The custom by which £^pprentices lived in their master's family has died out in the more luxurious and more exclusive social life of the present century, and they consequently are no longer a necessary source of outlay to him. This may add to the moral dangers of an apprenticeship, but it diminishes its cost ; for if a boy is well educated a master will take him without any premium at all. It is found that a well administered Poor Law Union has nothing to pay on apprenticing a boy; though a badly administered one is compelled to pay premiums before it can induce masters to hamper themselves with boys from its workhouse.lT In 1830 a Society was established " for apprenticing children of Dissenting ministers." It still * See the Irish Commisaioners upon the case of Roger Palmer's gift for Maniage Portions, at Rush, Co. Dublin ; Pari. Papers, 1877, xxvi., 30. Also Third Report of (English) Inquiry Commissioners, p. 317. + Report of Mortmain Committee, 1851. Evidence of the Rev. Father Mahony, Q. 297V. X Essays upon Educational Svhjects, p. 289. § Report of Popular Education Commission, iv., 318, [1 Ibid. I., 532. 1[ Ibid. IV., 319. 55 exists, but its original purpose has become so obsoieta that it is now contemplating a change of name. Still more generally useless are endowments for providing Loans. Apparently they offer advantages to enterprising young men to advance themselves in business, but in practice these advantages appear to be declined; possibly because a young man of known enterprise can usually obtain private credit, and prefers it to the patronage and the scrutiny of a Board of Trustees. Hence if the loans are borrowed at all, it is usually for the sake of putting the money into some qui^t investment and enjoying the differ- ence between the two rates of interest. The Charity perhaps asks one per cent, for a long loan, and a bank with a colonial connection will give five. Little enterprise is needed to make a practical application of these truths. If care is taken to prevent such an abuse of the funds, they simply lie unapplied for. Thus at Coventry, the Commis- sioners found in 1856 a loan fund of £20,000 wholly unemployed, and accumulating by its annual interest.* Similarly at Warwick, Sir Thomas White's charity for starting young tradesmen in business, had, in 1869, £7000 out upon loan, but it had also ^20,000 for which it could not find suitable borrowers, and which lay absolutely useless yet accumulating.-f- The value of Almshouses, again, is involved in consider- able doubt. There is much that is attractive in the idea of affording the aged the means of quiet rest between the toil of life and its end. But this object can be effected with greater benefit and less evil by providing pensions free from any obligation of residence. Pensions are distributed with far less trouble than is involved in regulating the affairs, and checking the disorders of an almshouse. Pensions involve no building capital and no annual outlay in repairs. The pensioner can live with those who know and care for him ; instead of having to quit their society for that of strangers, at the very period when he needs it most. Even the Greenwich sailors prefer receiving a small daily allow- ' Pari. Papers, 1856, xxii., 220. + Hansard, cxcvi., 1777. anee, living with their friends, to dwelling in their palatial hospital.* And whilst thus more economical and more acceptable than an almshouse, pensions are free from its great drawback — its obviousness, which reminds every passer-by of his chance of getting himself provided for by charity. The pension does its perilous good in secret; the almshouse obtrudes itself upon the eye, " a visible invitation to improvidence." Unhappily this, very obviousness has incited the multiplication of almshouses, affording as they do so much ampler gratification to the vanity of a Founder than the silent beneficence of a pension. The most beneficial almshouses are probably those which fall below, instead of rising above, the habitual standard of comfort of their inmates ; which do not, like ordinary alms- houses, give to the period of idleness what the period of work never succeeded in obtaining, but serve only to arrest a social descent, and afford a refuge to persons who have seen better days. At the same time such institutions are peculiarly open to jobbery. Thus at Sandwich, besides a set of almshouses for the working classes, there is another where the inmates receive £40 a year and a house ; and its patronage, until the Municipal Reform Act, was in the hands of the Mayor. The consequence was that the mayor- alty was sought for the purpose of making family provisions by means of the Foundation.f I learn from local inquiry that one Mayor presented his young wife to an almshouse and pension, which she enjoyed for forty years afterwards. II. — Subject Matter of Gift. ArrStez la Mainmorte s'il est possible. — Esprit des Lois, xxv. 5. The only restriction which is likely to be proposed under this head, is the prohibition of charitable gifts whose subject matter consists of land. The mediaeval enactments which prevented the gift of land to corporations partook of this * Hansard, cxci., 1286. Of. Mortmain Beport of 1851, p. 434. + Report of Popular Education Commission, VI., 582. S7 character ; but they were not limited to eleemosynary cor- porations, and they did not extend to charitable gifts to unincorporated recipients. The history of English law affords, however, in the eighteenth century, a perfect and more recent example of such a Restriction. When the Reformation broke up the unity of mediaeval life, reduced the Church to purely ecclesiastical functions, and released her shorn revenues from their general eleemosynary obligations, it gave a challenge to the nation, which the nation eagerly accepted. The new division of labour was readily undertaken by the lofty public feeling of the age ; and lay foundations arose all over the country to discharge, each in its special way, the various particular services of physical or moral beneficence, which in simpler times had seemed the common homogeneous task of the national clergy. The grammar schools of more than three hundred towns — one-half of, the grammar schools in England — are monu- ments of the tide of charity that welled up in the century of Edward and Elizabeth. The movement left a definite impress on our statute book. The Act of 1597 (39 Eliz., c. 5) provided new facilities for the creation of charitable endow- ments, as did that of 1601 (43 Eliz., c. 4) for their future supervision and correction ; and the enumeration which the latter statute gives of their possible objects is quoted to this day by our Tribunals as the legal definition of charity. The favour which the legislature thus manifested towards public foundations influenced, of course, the policy of the law courts, and even now, side by side with the incom- patible maxims of a later and conflicting policy, the plea which then arose is still at times heard, that " Charities are favoured by the law." This attitude was maintained by EngUsh lawyers and lawmakers for a century and a half, the golden age of endowments. Another revolution came. The days of Boling- broke succeeded the days of Bacon. The England which had fought the Church to save religion, now fought religion to destroy the Church. It is a remarkable, if not a humiliating fact, that in the present times of wise devotion and devout 58 benevolence, the rules of law, the policy of courts, and the current of public opinion, on the subject of Charitable Endowments, are still determined by an enactment of that age of narrow views and crooked aims, when -the high wisdom of Bacon, Hooker, and Milton had ceased to inspire, and the honest common sense of Hume, Smith, and Bentham had not yet begun to direct. Our jurisprudence has learned its theory of public benevolence from the Parliament of Hervey and Walpole and Bolingbroke, its estimate of pious uses from the readers of Toland, Tindal, and Mandeville. The spirit of that time, with its reaction against ecclesias- tical tradition, is doubly manifest, for good or evil, in the legislation of 1736. The same session which saw the laws against witchcraft repealed, saw a st5.tute passed to check charitable donations. Before thei passing of this Act a gift of either real or personal property might be made for " charitable uses ;" and might even be made to them in perpetuity,' although a gift in perpetuity for any other uses was and is void by the general rules of English law. The only restriction was, that if the property was real, and was to be held for charitable uses not by private trustees but by a corporation, whether aggregate or sole, the licence of the Crown was necessary. Such licences the Crown had, by 7 & 8 Wm. HI. c. 37, been expressly empowered to gi-ant, as a means of dispensing with the prohibitions of the old Statutes of Mortmain against the accumulation of real estate in the hands of incorporated bodies. But the Act of 1736 imposed far more sweeping restrictions. This statute (9 Geo. II., c. 36) presents one of the most curious problems in juridical history. Its object is a mystery ; its very titles are misnomers. It is called the Mortmain Act, but it is not concerned with Mortmain.* It is called Lord Hardwicke's Act, but he was not concerned in its intro- duction. Antiquarian jurists have abandoned, as an insoluble riddle, the attempt to discover the causes of its * "The reasoning producing this Act," says Lord Hardwicke, " is more like De Donis than Mortmain " (1 Ves. Sen. 223). For it aims at rendering land Blienable, not at protecting the feudal rights of the lords of the land. 59 enactment. Its preamble is at variance with its provisions, and its provisions with the professions of its promoters. The effect of this statute is to prevent landed property from being given to charity either by Will or by such a deed as is practically a Will in disguise. Secret deeds, revocable deeds, death bed deeds, it renders void. In other words, it provides that land, or money for the purchase of land, is not to be given to charitable uses except by means of an absolute and irrevocable conveyance, executed atleast a year before the death of the donor, and publicly enrolled within half a year of its execution. The novelty of these provisions is as remarkable as their stringency. They constitute a revolution in legal policy, and mark an epoch in the moral and spiritual life of England. To what contemporaneous circumstances are we to look for the justification or even the suggestion of so important and so revolutionary an enactment ? The Mortmain Committee of 1844 report that in spite of all their efforts they "failed to arrive at any certain knowledge of the true grounds on which the Act of Geo. II. was passed. Indeed, the insufficiency of the reasons assigned in the reported debates is such as would rather lead to the infer- ence that some apprehensions, which it was not thought wise to make public, must have operated in addition to the avowed motives of the legislature." Mr. Burge, Q.G., one of the Committee's most learned "witnesses, told them " I should be exceedingly puzzled to state the origin of the Act. I have endeavoured to ascertain it by research, but without success. I am strongly inclined to think that there is a great deal more than meets the eye in reading the history of that time. When I compare the enactments of the Act with its title and preamble, I suspect there must have been some local and partial purpose to be answered It is clear, we have not arrived at the real motive of the legislature by anything which is professed in the title or preamble, or which one can collect in the history of the times I recollect once inquiring of Mr. Wright, the great promoter of the Parliamentary History, who published the Cavendish 60 Debates, and was an exceedingly clever man, and most indefatigable in his study of the history of the proceedings of Parliament ; he could give me no information about it, nor does any contemporaneous historian that I have met with ; all that can be found is in a note to Hansard's Parliamentary History." (Questions, 1381). If we may credit that note, the Act was produced partly by some recent injudicious and ostentatious- devises to charities, but particularly by the fact that one Mr. Michel was going to leave a very large estate in land to one of the Universities ; the allusion being, no doubt, to John Michel's foundation at Queen's College, Oxford (to which he had just devised estates in Kent and Berkshire, by which the Grand Front in the High-street was erected, and a new staff of Fellows, Scholars, and' Exhibitioners established, whose stipends amounted in 1852 to £1380 a year).* We may well ask why the munificence of Michel should have goaded the House of Commons into such impetuous action, when the munificence of RadclifFe, twenty years before, had awakened only admiration. If the aggrandisement of the Universi- ties had been the danger immediately dreaded, is it credible that their petition would have been acceded to, and Oxford and Cambridge have been, as they are, exempted from the Act ? The story assumes that a sweeping measure was passed to meet a single case, and that this very case was then exempted from the measure. It must not, however, be forgotten that while the petitions of the Universities and public schoolsf were granted, the * Oxford Univ. Com. Report, (Pari. Papers, 1852, xxii.) p. 204. + Hams mentions the petitions o£ the schools in his Life of Hardwioke, but the Pariiamentary History does not. The Cambridge petition contains some curious statistics. The University declare : " That a considerable part of their revenue arose from annuities and certain other payments issuing out of lands and other estates ; and that many of those payments having been fixed in the reign of Queen Elizabeth, and still continuing invariably the same, were then, by the great fall of money since that time, sunk so far below their original value as to be insufficient to answer the purposes for which they are designed, and that several headships were under £120, some under £100 per annum, and that the salaries of some professorships were under £50 per annum, and others, as those of botany, anatomy, and Christianity, had no endowment at all ; and that the income of much the greatest part of their fellowships was under 61 petitions of the Grey Coat Hospital, and other charity schools, for a similar exemption were in every case refused, though their claims might well have been considered more pressing and more unexceptionable. This anomalous prefer- ence of the charities of the rich to the charities of the poor seems at first sight inexplicable. But when the Bill was under discussion, London had not ceased to talk of Guy's unprecedented gift of two hundred and thirty-eight thousand pounds, for the hospital that still bears his name ; or ceased to invent the stories about his disinherited kinsfolk, which drove the Governors in self-defence to print his will with its long array of family bequests. Unmistakeable are the sneers of the debaters upon the Bill, at " the spirit which has been lately raised for erecting and endowing hospitals," and at "the delirious ambition of erecting a palace for beggars and having a name engraved in gilded letters above a superb portico, or having a statue set up in the area of a charitable palace." But to project and to carry so strong a measure, stronger feelings must have been at work than the thought of either Michel's or Guy's lavish munificence could ever have aroused. A political panic can scarcely have been awakened by the thought of a hospital or a college. The Jacobites, the clergy, the Dissenters, were more likely sources of terror. Moreover, if a mere jealousy of moi-tmain in general were the motive, why should Scotland have been excepted from the Act ? It must be remembered that the year of this enactment is chiefly made conspicuous in our annals by the unsuccessful effort of the Nonconformists to free them- selves from the shackles of the Tests Act. An epoch in the ecclesiastical history of England had arrived. The sixty, of many under forty, of some so low as thirty, and twenty and fifteen pounds per annum ; and that many of their scholarships and exhibitions amounted not to above six, four, and three pounds per annum ; and that some were even under those small sums ; and that many poor students had neither scholarships nor exhibition to help towards their maintenance, and that the number of advowsons in most colleges was very small in proportion to the number of fellows, and they therefore prayed the House to except that Univer- sity, and the several colleges therein, out of the said bill." — Parliammtarxj lHitory,yo\, ix., p. 1110, 62 original provisional Nonconformity, which looked to ulti- mate absorption in a more comprehensive national church, had begun to give place to a newer school, which repudiated as irreligious the very principle of Establishment,* and aimed at the legalisation of a permanent "Dissenting Interest." Remembering this, and remembering that Mr. Coward's scheme for a dissenting endowment had just been planned (a most important addition to the existing foundations of Lady Hewley and Dr. Williams), it is possible that some anticipated danger from the schismatic side contributed, if not to the introduction of the Bill, at least to the largeness of the majorities by which it passed. If so, Lord Hard- wicke had an important purpose in the transient references which the notes of his intended speech contain to ' faction,' ■ dissenters,' and ' a separate and disjointed set of people like the Jews.' The opponents of the Quakers' Tithes Bill and of the abolition of Tests mayor may not have looked to the Mortmain Bill as a barrier against the material organisation of Dis- sent. But it is, at any rate, certain that their opposition to the former measures contributed materially to the passing of the latter. Upon all three the Bishops were unanimous in opposition ; and the resolute attitude they assumed seems to have aroused corresponding energy in the supporters of the three measures ; so that, as Lord Herveyf has it, " Parliament, like bulldogs, sticking close to any hold on which they have once fastened, the poor church this winter was as much worried as Sir Robert had been any other." Walpole, whom the recollections of Sacheverell's triumph had alarmed into opposing the repeal of the Tests, came to the support of the Quakers' and the Mortmain Bills ; though not daring to take any prominent part in pushing them on. ]. Lord Hardwicke and Lord Talbot (then Chan- cellor) found technical objections to the proposed mode of relieving the Quakers ; but they ' espoused and pushed ' the * Bogue and Bennett, III, 169. t Memoirs II. 87, t lb. II. 94, 63 Mortmain Bill, as ' all the lawyers in both Houses ' had done — a professional coalition which Lord Hervey, with amusing malice, attributes to their belief that " the fewer lands there were unalienable in the kingdom, the more titles to lands there would be open to be litigated." Some evidence of the popular feeling on the question may be gathered from Fielding's burlesque of PasqvAn, which appeared this year, and was running with extraordinary success when ^e Bill was passing through Parliament. Firebrand, the Priest of the Sun, rebels against Queen Com- monsense, and declares that he does so — " Not for ambition's earthly cause, But to enlarge the worship of the Sun ; To give his priests a just degree of power, A-iid more than half the profits of the land. Oh ! fay good Lord of Law, would' st thou assist, In spite of Commonsense it might be done," It was by Sir Joseph Jekyll, the Master of the Rolls, ■' foremost amongst the philanthropists of his day,"* Pope's, 'Odd old Whig Who never changed his principles or wig,' that the Mortmain Bill was introduced into the House of Commons. In that House he had, according to Lord Hervey, more general weight than any other single man. There is no ground for supposing that Hardwicke had any hand in its composition. The opponents of the Bill invited his ^liance ; and he introduced an amendment into it when it was before the Lords (the clause which makes purchases by charities hold good, even if the vendor die within the year ; which, he introduced chieflj'^ to enable Queen Anne's Bounty to continue buying land to augment vicarages.)f The aim of the Bill was defined by its title as being " To restrain the dispositions of lands, whereby the same become unalienable," and it recited that gifts " in mortmain are prohibited by or restrained by Magna Charta and divers other wholesome laws as prejudicial to and against the com- mon utility ; nevertheless this public mischief has of late * Ewald's Walpole, p. 272. t 1 V.s. Sen. 222. 64 greatly increased." An Act of 1G95 (7 and 8 Wni. Ill, c. 37), had extended the royal power of granting licences in mortmain ; and so largely had its provisions been acted upon that when the Commons in this session addressed the Crown for a return of these licences, it appeared that in the forty -one years lands of the annual value of £52,000 had gone into mortmain by royal licence,* independently of all that had been acquired under statutory permission. Yet the opponents of mortmain made no effort in their Bill to remove or restrain this dispensing power. They left cor- porations free to enlarge their estates by purchase ; and con- tented themselves with restricting the power of benevolent founders to present lands to charities, restricting it alike whether the lands were to pass into mortmain, that is, into the hands of a corporation, or only into those of unincorporated private trustees. It is remarkable, too, that their absolute prohibition of charitable gifts of land extends only to gifts by will ; the benevolent being left free to " prejudice the common utility " by the most lavish gifts of land, so long as they did it a year before they died. " Languishing and dying persons," to use a phrase of the Act, were evidently the donors whom it had in view, with their accessibility to sacerdotal influence ;f and yet all the speakers inthedebateadmitted that the modernEnglish clergy were entirely free from any suspicion of even attempting to influence sick men in the distribution of their property. J Great weight is due to such a concession made at a time when anti-clerical feeling ran so high. For " the Mortmain * Gentleman's Magazine, 1736, p, 393. t InAtt.-Gen. v. Lord H'e2/motttA(Ambl.23),LordHardwicke sayB, "The reason of this statute was to hinder gifts by dying persons, out of a pretended or mistaken notion of religion, as thinking it might be for the benefit of their Bouls to give their lands to charities which they paid no regard to in their lifetime." And he is quoted (but I have not succeeded in verifying the quota- tion) as saying in Att.-Gen. v. Graves, " One of my chief reasons for laying a restraint on such donations, is lest the clergy of our Established Church should be tempted and instructed to watch the last moments of dying persons as insidiously as ever the monks and friars did in the darkest times of Popery and superstition." J Gentleman's Magazine, 1736, p. 336. But on their rubrical obligation to do so, see below, Part III, sec, vi. Bill," says Lord Hervey*, '• and the Quakers' Bill were both passed in the House of Commons by great majorities, and everybody that spoke for them gave the bishops and the parsons very hard as well as very popular slaps : the young men all ran riot on these topics, and there were none to take the part of the poor Church but a few old Tories and Jacobites." In the House of Lords this feeling found a concrete foe to assail. Since the suspension of Convocation had deprived the Established Church of any central organisation, the Corpo- ration of Queen Anne's Bounty had assumed an importance, as her extra-constitutional organ, such as it is difficult for Churchmen of the present century to realise. It was a metropolitan body, thoroughly devoted to the Church, and possessed of great wealth, great powers, and great privileges. Dean Prideaux, himself one of the Governors of the Bounty, had pointed to it as the means of buying back the secular- ised tithes, and undoing Henry VIII.'s spoliations.-(- A writer, whose calculations were in the hands of every man of business, had warned the laity of this, and had reminded them of the dangerous fecundity of compound interest. J Anne had released the Governors § from the old restrictions on mortmain, and in the thirty years of their existence they had spent between seven and eight hundred thousand pounds in buying land.|| They naturally petitioned for a similar exemption from the restrictions of the new Bill. It is a significant fact that whilst similar petitions from the Universities were referred to the Committee, and a clause exempting Oxford, Cambridge, Eton, Westminster, and Winchester was carried by 227 to 130, the House, by 143 votes to 95, refused to refer the Governors' petition. (The * II. 94. t " Vindication of an Award of Chaa. I.," p. 64. He enforces the suggestion by an assurance that the creation of the Bounty had been " » very powerful means to obtain for us from God " Marlborough's victory at Ramillies (p. 65). X Smart, TahUs of Interest, p. 107. § 2 & 3 Anne, c. 11, ». 4. II Gent. Mag., 1736, p. 393. Under one Will— that of a Mr. Osbolston— the Bounty had already received a residuary bequest of nearly £13,000. Ecton's Proceedings, pp. 19 and 117. F 66 Bill itself passed the House by 176 to 72.) Even in the Universities, a precaution was taken against the consolida- tion of clerical power ; the fifth clause of the Bill providing that no college should hold more advowsons than would amount to half the number of its Fellows — a remarkable attempt to prevent lay patronage from passing into ecclesi- astical hands, which was repealed seventy years afterwards, in order to secure " a better supply of fit and competent parochial ministers." (45 Geo. III. c. 101.) When the Bill reached the Lords, the Governors had to meet a direct attack. The Bishops moved to exempt Queen Anne's Bounty from the Bill. This called up Lord Hervey, who entered into an elaborate analysis of the receipts and expenditure of the Bounty, insisted that the Governors were perverting it from its objects, and taunted the Bishops with robbing the public under pretence of helping the poorer clergy, and then cheating the poor clergy by giving the proceeds to the rich ones.* (There may have been some foundation for his attack, for next year the'House of Lords addressed the Crown upon the subject, and the rules of the Bounty were revised.) He succeeded in preventing the exemption ; but long afterwards, in 1803, an Act was passed (43 Geo. III. c. 107) to release the Bounty from this statute of 1736, as one by which " the beneficial efiect and opera- tion" of Queen Anne's gift "had been considerably obstructed and retarded."-f- Lord Hardwicke found the principle of the Bill so popular in the Upper House that the second reading passed without a debate, and he never delivered the elaborate speech which he had prepared. J He would have warned the lay lords that * Hervey's Memoirs II., 95, 101. t It may be interesting to contrast the present financial position of this Corporation with the anticipations of that period. According to a Return of 1877 (Pari. Papers LXVI. 665), the assets of the Governors of Queen Anne's Bounty ia 1876, a hundred and forty years after the passing of Jekyll's Act, amounted to £3,777,976 10s.; their annual expenditure to £119,806 5s. 9d.; and their annual receipts to £146,981 Os. 5d.; of which the First Fruits pro- duced about £5000, and the Tenths about £10,000 annually. In January 1879, the assets amounted to £3,845,556 16s. 4d. J His notes for it are printed in Harris's Idfe of Hardwicke, I. 308. 67 the balance of power had been disturbed ever since their ancestors, by permitting their entailed lands to be alienable, had parted with a great share of their influence in the country, whilst, by the inalienability of mortmain, the influence of another estate of the realm was " going on per- petually increasing." He would have asked them whether " everybody was to be suffered to alter the balance of power and property at his pleasure ?" He would have warned the lords spiritual to consider the security of their " eminent, well-endowed dignities," and "fortify the enjoyment of what they have " by refusing to receive more ; lest their wealth should reach a pitch that would tempt some enter- prising prince to repeat the spoliation of Henry VIII.'s time. Thus Sir Joseph Jekyll's Bill became law, the very facility with which it passed through Parliament affording sufficient evidence of the absence of that charitable enthu- siasm whose violence alone could have justified its being passed. From its importance I subjoin in full the provisions of this remarkable measure.* Few statutes have produced more litigation ; but this has been due rather to the zeal with which Englishmen have persevered in attempting to do works of benevolence, than to any obscurity in the wording of the Act. Its provisions nevertheless present much matter for criticism, indepen- dently of the doubtful principle upon which it is based. For even if we accept its general policy, we shall be at a loss to understand the halting manner in which it carries out that policy. Lands are to be kept from inalienability, children are to be saved from disinheritance, dying men are to be protected against ecclesiastical extortion. But why carry out each of these purposes only half way ? The Act restrains the voluntary gift of lands, but leaves charities at liberty to bring them into mortmain by purchase. The Act forbids " the disherison of lawful heirs " by a testator, but leaves him at liberty to bequeath away in charity the personalty which serves as the inheritance of his younger children. The Act prevents " languishing or dying persons" * Infra, p. 76. f2 68 who are landowners, from sacrificing their estates to their ghostly fears, but it leaves those fears free course in the minds of men who only own personalty, in the minds, there- fore, of all the classes whose want of education renders them an easy prey to such ten-ors. In each case it averts the lesser danger and takes no heed of the greater. Practical proof may easily be given that it is not for the land-owning classes that any such legal pro- tection against death-bed influence is needed. An investigation of the long catalogue * of Irish charitable bequests for the years 1844 and 1845 will show that the great majority of those which were made to pay for masses were made by the poorer orders ; as where Elizabeth Courtney, of Dublin, directs her featherbed to be sold, and ten shillings of the price to be spent in buying four masses.-f Passing from religious anxiety to sacerdotal pressure, it may be noticed that the seven suspected wills which Archbishop Whately's son-in-law brought before the last Mortmain Committee were those of testators the average of whose personalty amounted only to £1309 apiece.J The list of the exceptions§ that Parliament has made to the working of the Act of Geo. II. completes the irony of this story of paradoxes. A gift to Oxford is said to have been one of the two chief events that provoked the Act ; yet the Universities were excepted from its prohibitions. The foundation of a hospital is said to have been the other ; yet several hospitals have since obtained exceptions. The one source of peril upon which stress was laid in the debates on the Act was Queen Anne's Bounty ; yet Queen Anne's Bounty has since obtained an exception. To restrain the Church from acquiring more land was the one great object of the Act ; yet the only sweeping general exception that has yet been made to its prohibitions is one which permits lands to be devised " to the Ecclesiastical Commissioners," * Pari. Papers, 1846, xlii., 69. + P. 108. t Report of Mortmain Committee, 1851. Pari. Papers, 1851, xvi., Appendix I, § See Tudor's Law of Chwitabk Trmts, I. 8, iv. 69 for " the endowment or augmentation of the income " of clergymen of the Established Church* The House of Lords' Committee on Spiritual Instruction recommended, in their Report of 1858,f " That the Mort- main Acts be so far relaxed as to admit bequests of impro- priate tithe rent-charges, or of money for the purchase of the same, for the endowment of any benefice with the cure of souls, to an amount not exceeding £300 per annum." The Act has been rendered more stringent than its framers intended, by the vigour with which the judges have carried it out. " Never," says Jarman, " was the spirit of any legislative enactment more vigorously and zealously seconded by the judicature."! Mr. Lewis says that "the judges have given the widest possible scope to the operation of the Act, and have been even astute to discover arguments whereby cases seemingly extra both the letter and spirit of the statute might be brought within it." § And Lord St. Leonards, whilst pointing out that "the tendency of modem decisions has been the other way," insists that in the older cases " it is impossible to deny that there is to be discovered an inclination to carry the provisions of the Act beyond the intention of the Legislature." || Lord Hardwicke initiated the principle of departing from the rule that charities are favoured, and of construing the Act widely, so as to cut down charitable gifts as far as possible ; and his successors faithfully followed it into still greater latitude, until a reaction set in during the present generation. Three important and unfortunate instances of this construction may be noticed. I. The Act was meant to apply only to gifts of "land, tenements, or hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements, or hereditaments." But these words have been so interpreted as to include many securities that fall in no way within the economical or political princi- * 6 & 7 Vic, c. 37, s. 22. See also 43 Geo. III., o. 108. t P. xxi. t On WiUs I., 211. § On Perpetmties, p. 691. II Myere v. Perigal (2 D. M. and G., 619). A.D. 1853. 76 pies on -which the statute was founded, and that even to the eye of an ordinary lawyer would only wear the aspect of pure personalty, and in some cases have been declared to be personalty by the Acts creating them. Hence no valid devise to a charity can be made of a mortgage of turnpike tolls ; although, as Sir "Wm. Grant says, " It is difficult to show that a charity, by taking money upon that security, takes any interest in land,"* and even the Lord Chancellor who first decided the point admitted, " It is not at all within the mischief, but the consequence would open a much larger field for charitable donations.''^ The same construction has been adopted in the case of loans secured upon local rates, and of shares in many public undertakings ; with the result of establishing between bequeathable and unbequeath- able securities a line of distinction, so artificial that it does not correlate with the policy of mortmain laws, and so intricate that no testator can safely act under it without skilled advice. The most recent text writer on this branch of law is compelled to leave this distinction with the remark that, " The decisions are at present somewhat conflicting.''^ So too a devise of growing crops, or of the money to arise from their sale,caimotbe made to a charity; though no landcan be rendered inalienable by such a gift. In a similar manner it has been settled that if a testator directs his estates to be sold, and the purchase money alone to be given to a charity, thus expressly providing that the land shall not go into mortmain, the gift of the purchase money will be void.§ The decision is said to be based on the ground that a legatee of purchase money may elect to take the land instead ; but even then it would be difficult to reconcile it with the well- established rule that, even before the Naturalization Act of 1870, the purchase money to arise from the sale of land might be devised to an alien, though at that time the land itself could not be.|l And, indeed, the bequest of pur- * Finch V. Squire (10 Ves. 41). + Lord Eldon ; in Knofp v. WUIiams (4 Vee., 430 n.) J Whiteford on Charities, p. 37. § Att.-Gm. V. Lord Weymouth {Ambl. 20). II See Du Hiywrmdm v. Sheldon (4 M.'& C, 525). 71 chase money to a ctarity has been set aside even where the circumstances were such that the legatee (and even the testator himself, for it was by a previous settlor that the conversion had been directed), could not have insisted upon taking the land as land.* Similarly it has been idtimately settled that a man who has sold an estate cannot bequeath to a charity the unpaid purchase money, because the payment might be enforced against the land.f These perplexing extensions of the Act have thrice been condemned after official investigation. The Mortmain Committee of 1844 reported, t that "land left to Charities, with a direction to be sold, and all virtually personal pro- perty, do not fairly come under the intent of that statute." The Mortmain Committee of 1852 reported, § that "great evils arise from the somewhat technical distinctions in the law as they affect different kinds of personal estate. It is in evidence before your Committee, that scarcely any pro- perty can be safely disposed of, where legacies are given to Charities, and the property is considerable, without a suit in Chancery. As such a suit involves an investigation of the relative amounts of the different descriptions of property, the expense is necessarily large, and usually falls upon the residuary legatee, who has also to pay the chari- table legacies themselves. Your Committee are of opinion that these distinctions should be abolished entirely, and that the same law should be enacted with respect to all descrip- tions of personal estate given for charitable purposes, and whether it be directed to be laid out in land or not." The Popular Education Commission of 1860 reported, || that " it seems reasonable, if the State desires to encourage educa- tional Foundations, that the decisions which extend the prohibition of devises in mortmain to mortgage money, and to the price of land ordered by the Will to be sold, should be repealed." * Brooh V. BaMey (L. E. 3 Ch. 674). + Smrkon v. Harrison (1 R, and M. 71), overruling MidcUeton v. Spicer (1 Br. C. C, 201). t Pari. Papers, 1844, x., 509, § Pari. Papers, 1852, xiii., 7. II Report I., 514, n II. The Act prohibits bequests of money " to be laid out or disposed of in the purchase of any lands." But this has been interpreted to apply not merely to cases where the testator has expressly directed that application of the money, but even to cases in which his intention is only inferred by a somewhat astute construction.* Even Lord Hardwicke allowed money to be bequeathed for " erecting " schools and almshouses, on the ground that to erect need only mean to found, and that a school or almshouse might well be founded in hired premises; but such bequests are now held to be void.-|- Lord Hardwicke also held that money might be bequeathed for the purpose of building upon land, which though not in mortmain before the testator's death might afterwards lawfully come into mortmain ;J yet this was at one time denied on the simple ground that such a bequest " holds out a temptation to people to give the land,"§ but it is now a well-established rule. Still it has been settled that no bequest towards a purpose which will involve the use of land, can be allowed to take effect imless the testator distinctly points to land that is already in mortmain, or directs that no part of his legacy shall be spent in the purchase of land. || Such a presumption of illegal intention may be regarded as anomalous. It is needless to' remark that many most beneficial chari- ties have been prevented from coming into existence by the unforeseen difficulty that they would be held to involve the acquisition of land. A very recent instance occurred under the will of the philanthropist, George Moore, who had set apart £15,000 to establish a Convalescent Hospital, but died before the site was bought.ir Lord Northington carried the construction of this clause so far as to treat the bequest of money for the improvement of lands already belonging to a charity, as being equivalent to a bequest for purchasing new lands for it ; and declared • Cmtwdl V. Baker (2 Vea. Sen. 185) ; Vaughanv.Farra- (2 Ves. Sen. 182). t Att.-Gm. V. Nash (3 Br. C. C. 588). X Att.-Om. V. Bowles (8 Atk. 806). See now Att.-Gen. v. Pkilpot f6 H L C 838). § Per Sir E. P. Arden, M.B., Att.-Om. v. Whitcliurch (3 Vea. 141). II Prait V Harvey (L. E. 12 Eq. 544). IT Smilea' Life of Moore, p. 443. that if such bequests wei-e allowed, " almshouses would be turned into palaces, and small spots of ground be covered with immense buildings."* This extreme position has, however, long been abandoned ; but it is still law that money cannot be given to pay off the incumbrances upon lands that already belong to a charity .f III. It was always the rule of Equity that if one claimant had two funds to resort to, whilst another claimant could resort to but one of them, the former might, if necessary, be compelled to leave the doubly burdened fund to the latter claimant, and satisfy himself from the other source. After the passing of the Act of 1736, this principle was conse- quently applied by Lord Hardwicke in cases where a testator had given a legacy (other than a merely residuary one) to a charity, and had charged his real estate with the payment of debts or legacies ; so that, if the personal estate proved insufficient to pay all, it was applied first in paying the charitable legacy, and the other legatees or the creditors were remitted to the real estate. J Lord Northington, how- ever, abandoned this principle, and it became settled that assets were no longer to be marshalled in favour of charities.§ "It does not appear," says Lord Commissioner Ashhurst, " what was the reason of the turn in the cases ; but as the decisions have taken that course, we cannot alter them." || The rule against marshalling is applied not only between personal estate and charged real estate, but also between different kinds of personal estate — namely, pure personalty and mixed personalty ; so that Chancery will direct chari- table legacies to be rateably apportioned between the two kinds, and will then declare that so much as is apportioned on the mixed personalty must fail. . Lord Northington's course has had the unfortunate result, not merely of defeating many gifts that did not fall within the mischief contemplated by the Act, but also of causing • Att.-Gen. t. Tyndall (2 Eden, 213). t Vcmghan v. Parrer ; Waterhouee v. Hohno (2 Sim., 162). t OcUton V. ffancoch (2 Atk. 430) ; Att.-Gen. v. Gravel (Ambl. 155). § Foy V. Foy (1 Cox 165). II Makeham v. Hooper (4 Br. C. C. 156). 74 much unnecessary expense, by rendering Chancery suits necessary in many cases as the only means of having the various items of the estate authoritatively ascertained, and the valid quota of the charitable gifts authoritatively appor- tioned. The Mortmain Committee of 1844 reported, that they did not " think it just that charitable legacies should alone be excepted from the advantage of having assets marshalled in their favour. Upon this point they would direct especial attention to the valuable opinion of Mr. Jarman."* And the Popular Education Commissioners of 1860 recommended the repeal " of the rule of Equity, that a charitable legatee shall be deprived of the privilege given to every other legatee, of taking his legacy from the fund legally subject to it."f Yet it is now admitted to be lawful for the testator himself to marshal the assets, by directing the charitable legacies to be paid exclusively out of his pure personalty, and to be a first charge upon it ; and the Court will give efiect to such a direction. Looking back upon the whole picture which we have now drawn of the policy and provisions of Sir Joseph Jekyll's Act, and the extensions and exceptions which have since sprung up around it, we shall see little that calls for the approval of the lawyer, the statesman, or the philanthropist. In the words of Mr. Hare, at once the most profound and the most practical of all writers who have treated of the subject of Endowments, this portion of " the law of England, as it at present stands, is inconsistent and incongruous, and a reproach to the jurisprudence of an enlightened nation."^ The Mortmain Committee of 1844 declared themselves "bound to state, from an attentive consideration of the evidence submitted to them by witnesses whose means of information and authority must be held to be great, that the operation of these laws is most unsatisfactory, leads to doubt, expense, uncertainty, and litigation, and frequently * Pari. Papers, 1844, x., 509. + Report I., 514. X Transactions of Social Science Association, 1862, p. 164, 75 defeats good and pious purposes, which the present aspect of the country would induce all men to wish fulfilled; while, from the existing facilities for evasion, they cannot be regarded as serving the main purpose for which they are supposed to be maintained — ^by securing the heir from the unexpected alienation of property."* Amongst the many desirable gifts which the Act of 1736 has prevented from taking effect, may be mentioned that of George Moore.-f- So again, in 1858, a Miss Read bequeathed to the Brompton Hospital for Consumption " all the estate which I can by law bequeath." Her pure per- sonalty amounted to £100,000 ; but there was also £40,000 worth of realty, which the Hospital was thus debarred from receiving. In some cases, a noble feeling of honour has led heirs from whom land had been devised away in charity, or devisees whose gift had been qualified by some charge in favour of charity, to waive the advantage of the Act, and execute a conveyance to carry out the testator's benevolent intentions.! It desei-ves to be remembered that in 1737, the year after the passing of Jekyll's Act, a similar measure was introduced in the Irish House of Lords. It was defeated; a result which was probably facilitated by Dean Swift's presenting a petition that he might be excepted from the Bill in case it should become law.§ The petition stated that he had be- queathed his foriiune to charitable uses, and if the exception were not granted him he should be under the necessity of remitting it abroad for the same purposes. As all his readers know — ' He gave the little wealth he had, To build a house for fools and mad ; To show by one satiric touch, No nation wanted it so much. That kingdom he hath left his debtor — 1 wish it soon may have a better.' The funds which he finally settled upon the hospital * VU supra. t Supra, p. 72. $ See the Inquiry Commissioners' fieports, VII., 184, 264 ; IX., 681 ; XI., 19 ; XII., 508 ; XIV., 377. § Scott's Life of Swift, p. 438. 76 amounted to above £10,000 — the whole of his savings for some thirty years. The gift was beneficent and wise ; yet his friend Pope had given him the hint of a happier, and not less wise, beneficence, when he wrote — " I will enjoy the pleasure of what I give, by giving it alive, and seeing another enjoy it. When I die, I should be ashamed to leave enough for a monument, if there were a wanting friend above ground." The following is the full text of the Act : — Statute restraining Gifts to Charitable Uses, 9 George II. c. 36, A.D. 1736. ' An Act to reitram the Disposition of Lands, whereby the same become wnalienahle. 9 Geo. 11. Whereas gifts or alienations of lands, tenements, or heredi- Preamblo. taments, in mortmain, are prohibited or restrained by Magna Charta, and divers other wholesome laws, as prejudicial to and against the common utUity ; nevertheless, this public mischief has of late greatly increased, by many large and improvident alienations or dispositions made by languishing or dying persons, or by other persons, to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs. For remedy whereof, be it enacted by the king's most excellentmajesty,byand withtheadvice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and After 24 after the twenty-fourth day of June, which shall be in the nomanorsl year of Our Lord one thousand seven hundred and thirty-six, normonoy' "° manors, lands, tenements, rents, advowsons, or other goods, &o., hereditaments, corporeal or incorporeal whatsoever, nor anv to be laid . j i_ ii i . , . , , outinland, sum or sums of money, goods, chattels, stocks m the public to'diSlt." funds, securities for money, or any other personal estate what- ablo usee, goever, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, shall be given, granted, aliened, limited, released, transferred, assigned, or appointed, or any ways conveyed or settled to or upon any person or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incum- bered by any person or persons whatsoever, in trust, or for the benefit of any charitable|uses whatsoever, unless such gift, con- veyance, appointment, orsettlement of any suchlands, tenements, or hereditaments, sum or sums of money, or pei-sonal estate 77 (other than stocks in 'the public funds), be, and be made by deed indented, sealed, and delivered in the presence of two or unless by more credible witnesses, twelve calendar months at least dented and before the death of such donor or grantor (including the days before two of the executionanddeathVand be enrolled in his majesty's high witnesses, -, ,,..,, - ci^^ months court of chancery within six calendar months next after the before the execution thereof ; and unless such stocks be transferred in ^^^ donor the public books, usually kept for the transfer of stocks, six f"/^?™'" calendar months at least before the death of such donor or grantor (including the ,days of the transfer and death), and unless the same be made to take effect in possession for the charitable use intended, immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him. II. Provided always, that nothing herein before-mentioned The said relating to the sealing and delivery of any deed or deeds ^^^ ^^ ^^_ twelve calendar months at least before the death of the *™^jj^gj grantor, or to the transfer of any stock sis calendar months or transfers before the death of the grantor, or person making such transfer, valuable shall extend, or be construed to extend, to any purchase of any t™„gf °''*" estate or interest 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 such conveyance or transfer, without fraud or collusion. III. And be it further enacted by the authority aforesaid, oiftg, be, that all gifts, grants, conveyances, appointments, assurances, ^*j„„g"" transfers, and settlements whatsoever, of any lands, tene- i736,othor- 1 1 T I. 1 • i ^"® than ments, or other hereditaments, or of any estate or interest directed by therein, or of any charge or incumbrance a,ffecting or to affect y,^ abso- any lands, tenements, or hereditaments, or of any stock, inteiyToid. money,'goods, chattels, or other personal estate, or securities for money to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable uses whatsoever, which shall at any time, from and after the said twenty-fourth dayof June, one thousand seven hundredand thirty-six, be made in any other manner or form than by this act is directed and appointed, shall be absolutely, and to all intents and purposes, null and void. IV. Provided always that this act shall not extend, or be But not to construed to extend, to make void the dispositions of any ^eYwo°° lands, tenements, or hereditaments, or of any personal estate t^*™^^'^, to be laid out in the purchase of any lands, tenements, or colleges of 78 Eton, Win- hereditaments, which shall be made in any other manner or WestnTin-' ^'"'■'' ^^^ ^7 th'^ ^^ i^ directed, to or in trust for either of ster- the two universities within that part of Great Britain called England, or any of the colleges or houses of learning within either of the said universities, or to or in trust for the colleges of Mon, Wineliester, or Westminster, or any or either of them, for the better support and ' maintenance of the scholars only upon the foundations of the said colleges of Eton, Winchester, and Westminster. No college ^' ^'^v^'ded nevertheless, and be it enacted by the autho- to hold rity aforesaid, that no such college or house of learning, which more ad- I i i vowaons doth or shall hold or enjoy so many advowsons of ecclesiastical be*equal to benefices, as are or shall be equal in number to one moiety of'tlSr'*'^ of the fellows or persons usually styled or reputfed as fellows, fellows.djo. or where there are or shall be no fellows, or persons usually styled or reputed as fellows, to one moiety of the students upon the foundation, whereof any such college or house of learning doth or may, by the present constitution of such college or house of learning, consist, shall, from and after the twenty-fourth day of June, one thousand seven hundred and thirty-six, be capable of purchasing, acquiring, receiving, taking, holding, or enjoying, any other advowsons of ecclesiastical benefices by any means whatsoever ; the advowsons of such ecclesiastical benefices as are annexed to, or given for the benefit or better support of the headships of any of the said colleges or houses of learning, not being com- puted in the number of^advowsons hereby limited.] Eepecded by 45 Geo. III., c. 101. ' This not ^I- Provided always, that nothing in this act contained tend'to"^ shall extend, or be construed to extend, to the disposition, Bootland. grant, or settlement of any estate, real or personal, lying or being within that part of Great Britain called Scotland, Passing from particular example to general theory, it remains to consider by what arguments such restrictions upon charitable gifts of land, as distinct from personalty, may be defended or assailed. The reasons which led to the old statutes of Mortmain have long disappeared. The feudal rights of relief, ward- ship, and marriage, which were lost when lands passed into the hands of a deathless owner, have long ceased to exist ; and our cavalry is no longer provided by means of military tenures. Equally little attention would be paid now to a 79 political plea which was urged in the place of these by the promoters of the modern " Mortmain Act," who insisted that beneficiary owners of land would be " more daring and active in defence against a foreign enemy, and more jealous of arbitrary power"* than mere corporators or trustees. But another political plea that was urged in 1736 still retains some of its importance. The inalienability of the estates of endowed foundations is an evil whose gravity will be denied by none. Yet it was so early and so prominent an attribute of them, that from it the very name of Mortmain is derived. Littrd explains that phrase by referring to the use of 7)ianiLS by the Roman and the early French lawyers to signify Power, or Ownership ; and says that, in the word " main- morte," main consequently means the right to alienate and transmit, whilst morte means ' exhausted,' or ' powerless ' (as in the verb amx>rtvr). Hence " gens de mainmorte " are persons who cannot transfer or transmit title, whether on account of their being serfs, or of their being members of a corporation ; and " biens de mainmorte " are things which cannot be transferred or transmitted, whether on account of their belonging to serfs or to corporators. That this deriva- tion Ls the true one seems to be shown by its being the only one which accounts for the employment of the phrase in the law of Serfdom as well as in that of Endowment. Upon the same attribute of Inalienability depends the more paradoxical derivation quoted by Coke, which explains Mortmain as meaning Immortal Possession — "manus pro possessione, et mortua pro immortali.""f" So also does another, which is mentioned by Peckius, who says that a corporation cannot alienate, except " magna cum difficultate et solemnitate ; quemad/moduum morientis hoTninis manus firmiasi/me conclvsum, tenet." J But he gives another, and more popular derivation, based, not upon the fact that a corporation clutches its property with the tenacity of a dead * Pari. History ix., 1122. + Co. Litt., 2 b. t Tractatus de Amortizatione. A.D. 1582. 80 man, but upon the fact that, like a dead man, a corporation never dies — " sicut semel mortuus denu6 non moritur."* (But Coke, who also quotes the last two explanations, gives as the true explanation one based upon the loss of feudal profits — escheats, wardships, marriage, and the like — which tenancy by a corporation involved, " and therefore it was called a dead hand, for that a dead hand yieldeth no service." Blackstone, however, refers it to the fact of " these purchases being usually made by ecclesiastical bodies the members of which, being professed, were reckoned dead persons in law ; land, therefore, holden by them might, with great propriety, be said to be held in mortua manu."-f" Popular misapprehension seems to have based a still more recent derivation upon Sir A. Hobhouse's phrase of " getting rid of the Dead Hand ;" and it is now no uncommon error to suppose that property held in mortmain is so called because it was bestowed by the hand of a deceased Founder.) All inalienability causes both economical and political evil to the country at large, by diminishing the quantity of land in the market, and artificially raising its value ; thus repelling both the small capitalist who seeks a farm for his own use where " the magic of property may turn sand into gold," and also the successful trader who wishes to become a landlord and to found a family. A commodity so strictly limited in quantity as land is, should be rendered as freely transferable as possible, that the limits of the supply may not be artificially narrowed. Lord Hardwicke urged on behalf of the Act of 1736 that if the growth of mortmain continued, it would cut down the opportunities for that family ambition which forms " the great incitement to industry and merit, in trade, in study, and in the profession of arms ; " and reminded the Lords of the difficulty which their ancestors found in obtaining estates in the days when "the church and ^perpetual charities had above half the lands." J His opponents replied, somewhat feebly, that men were at times led to acqiiire lands by the prospect of being * Cf. Plowd. Comm. 193. + Commentmrks, vol. i. ch. 18. X Ufe, by Harris, I., 312. 81 able to devise them in mortmain, and consequently that that power of devise was itself " a great incitement to industry and frugality, and consequently a great encouragement to trade."* In the neighbourhood of large towns any restrictions on the opportunities of purchasing land are peculiarly injurious, as interfering with both the commercial and the sanitary progress of the neighbourhood. Yet it is precisely in and around large towns that the proportion of charity land to the land of individual owners stands highest ; for it is the new wealth of the trading classes that is bestowed most freely for public purposes. Thus the Committee oi 1862 upon the Ecclesiastical Commission received evidence that " The land locked up under charities and under the church enormously impedes the progress of the town of Lichfield." Inalienability, nevertheless, is by no means an essential of charity property, although it was once an universal attribute. In England various statutes were passed to restrain aliena- tions by ecclesiastical and eleemosynary corporations, whilst the rules of Equity made it utterly unsafe for unincorporated charity trustees to sell any land without obtaining the consent of the Court of Chancery.f Such restrictions, however, belong to the period when the administrative government of the State has not become sufficiently eifective to provide a check upon the honesty or prudence of the administrators of the charity. As soon as this country advanced to the point of establishing a permanent board of Charity Commissioners it conferred upon them powers which have materially diminished — I shall show| that they cannot be said to have removed — the inalienability of charity estates. But the most important disadvantages of an ownership in mortmain have been detected only by modern observation, and were not noticed by the statesmen who carried the Act of 1736. They are arguments of a purely economical character. * Pari. History ix. 1129. t See AU.-Gen. v. Kerr (2 Bear. 420). In 3 Beav. 91 is an instance of such a sale being challenged after the lapse of 115 years. % Infra, pp. 97-98 G 82 Land is not likely to be turned to the best advantage by the administrators of a public charity. There is proverbial advantage in the master's eye, and an estate itself suffers as much pecuniarily, as does its neighbourhood socially and politically, from having an absentee landlord instead of a resident one. In a long series of years it is impossible for such estates to be permanently well managed. A good steward is followed by a bad one. An indolent receiver succeeds to a zealous one. In the case of charity estates these evils are aggravated by the fact that the absentee owners have no self interest at stake. They can gain nothing personally by increasing the present income ; they have no children for whose sake they might plan enduring improvements. Hence whilst every country squire knows every field on his estate, there are many charity trustees who do not know even the names of their farms. " It is generally found," says Mr. Hare, him- self an ofiicial Inspector of Charities, " that such property is managed with less economy and is subject to heavier outgoings than that of a Kke kind belonging to private owners."* The Mortmain Committee of 1844 appeal to the admirable condition of the Guy's Hospital estates in contradiction of this view. But the very evidence to which they, refer shows that that condition was attained only by a happy accident. It was due to the good fortune of the Hospital in possessing a Treasurer who " devoted the greater part of his time for fifty years, and a considerable amount of his fortime to the superintendence of the afiairs of the hospital. He has taken a personal interest in the management'of the whole concern."-|- But not many charities can hope to secure a black swan; and few black swans possess the attribute of the phoenix. A very satisfactory account was given in 1874 by the University Inquiry Commissioners as to the condition of the land held by the Colleges of Oxford and Cambridge; — "The * Transactions of the Social Science Association, 1870, p. 327. t Report of 1844. Evidence, Q. 780, 83 estates let at rack-rent are reported to be generally in good condition as regards buildings, drainage, and cottages. We have no reason to think that they are below the average in those respects, although there is apparently less outlay than is made by private landlords who improve their properties. . . . The cost of management . . is very low. The average lettings, the absence o£ arrears, and the apparently small amount of losses from tenants, testify to the care and vigi- lance of the Bursars."* Lord Hatherley similarly appeals to " the estates held by the colleges in our Universities, and stiU more the lands held in Ireland by the public companies of the City of London," as fit to " bear comparison, as to their cultivation and management, with the lands held by individual proprietors."-f- But these are cases of lands which are managed, not by bare trustees, but by the actual beneficiaries of the Trust, and cases, moreover, in which these managers are of exceptional intelligence. At times, no doubt, a governing body may be found possessed of all the zeal and aU the opportunities of super- vision of a resident private owner. But they will rarely possess the means to carry out their desires effectively. Few charities could afford to follow the example of Guy's Hospital, which has often spent the whole revenue of its Lincolnshire estate in extending the sea-wallsj and building up new farms out of the waves. Almost every charity has more appeals for its aid than its utmost revenue can meet; and cannot repair its houses and drain its fields except by dismissing scholars or refusing patients. The revenue is so closely appropriated to its immediate work that at each audit the Treasurer fearsto find the balance against him, and grudges spending any income merely to add to his capital. He will not drain or build or fence. He will not lay down arable land to grass. He has nothing to spare. for roads or for sheds, for oil cake, or for manure. If farms are thrown up by the tenants he has no surplus funds, even if he have the * Keport, pp. 35-36. + Transactiam of the Social Science Association, 1859, p. 190. J Report of 1814. Evidence, Q. 785. G 2 84 surplus energy, to take them into hand as a private owner could do. The Charitable Trusts Act has, however, rendered some assistance by enabling the Commissioners to empower trustees to mortgage the charity estates for the purpose of raising money for draining, building, and other improve- ments.* It is sometimes pleaded that the interests of tenants are more generously considered, and estates managed more leniently by public than by private owners. Such a plea is in reality a further argument for private ownership, for it recalls the opportunities which the administrators and their stewards possess for acts of jobbery. A Trustee can indulge without any personal sacrifice his natural desire for patron- age and influence. It is not his own rent roll that is diminished by listening good-temperedly to the tenant's plea for easier terms. It is not upon his own banker that he draws the cheque for the new steeple or the agricultural sires' cup. In some instances this patronage is developed for political party purposes. So long as the tenancy of land or houses confers the electoral franchise, the owner of real property will be a centre of political power. Thus Lord Grey tells us that Greenwich Hospital "used to be one of the great [electioneering] interests in the county. It was one of the great objects of any candidate there to secure that interest."f This is, of course, an addition to the political influence which, as in the notorious case of the Coventry doles, the administrators of the charity may exercise over the objects of the charity, the recipients of their bounty; for influence over this latter class is, of course, the same whether the charity capital be invested in land or in the funds. It must also be remembered that even if the charity con- trives to render its estate as profitable as it could have been in the hands of a private owner, the extent of that profit will never be great. Land is a costly investment. So strong is the "earth-hunger" with all men who have * 16 and 17 Vic, c. 137, s. 21 ; and 18 and 19 Vic, c. 124, s. 30, t Hansard clxiii., 1389. 8.5 money to spare, so precious is the opportunity for field sports, and so great is the social distinction which is attached in this country to the possession of a large landed estate, that land has a second value quite independent of its agri- cultural capacities. Its price thus comes to be out of all ordinary proportion to its rental. In the case of charity lands the income, again, can seldom avoid undergoing additional deductions for the expense of delegating to paid officials much of the supervision and management which a private owner would not have had to delegate. The investment of charitable funds in lands must therefore be regarded in the great majority of cases as a material reduc- tion of the means for carrying on the works of mercy for which the charity exists. A landlord, moreover, has always the risk of finding his tenant bankrupt when the rent-day comes, but the holder of Consols can sleep securely. Again, till a public Register of charity lands, or of lands in general, has been established. Consols will present a more stable investment than real property. Formerly, indeed. Government stocks were even more insecure than lands ; for as no trust would appear on the bank books the charity stock could readily be disposed of by a fraudulent trustee, or might easily be innocently confused with his own stock by his executors when he died. The creation, in 1853, of Official Trustees of (jharitable Funds, in whom stock or shares belonging to a charity may' be vested,* has afforded a simple means of obviating these dangers. It removes also the lesser inconveniences that were occasioned by the expense of sending periodical powers of attorney to receive the dividends, which the Official Trustees will now receive and remit by their own cheque to the local governing body ;-f- and by the rule of the bank that more than four persons cannot be entered as joint holders of stock. If these various considerations lead us to condemn the acquisition of lands by charities, we shall be encouraged by * 16 & 17 Vic, c. 137, B. 51 ; 18 & 19 Vic, ^. 124, sa. 17-28. t It may also be remembered tbat a holder of Conaola may now elect to receive his dividend by post. 33 & 34 Vic, u. 71, a. 20. 86 finding that our doctrine is not the mere speculation of theorists, but ha.s obtained judicial and official sanction. Lord Hardwicke laid it down that " where a charity is to be created de ■n.ow.the better rule is for ittobelaidout in personal property, for which the funds are convenient, affording a better and a readier income than land."* Hence the Court of Chancery still retains the rule that land is usually to be discouraged as an investment for charity funds.f And Lord Cairns has expressed an opinion that even in the case of existing endowments it would often be convenient for the charities to convert their realty into money. J An actual instance is referred to by one of the Endowed School Commissioners, who describes the property of Wheelwright's Charity, in Yorkshire, as " a difficult and troublesome estate to manage. It is very much scattered; it is in small holdings ; there is a good deal to do in the way of keeping up and repairs ; and it is so expensive an estate that probably for many reasons it may be for the advantage of the Trustees to dispose of it."§ Similarly the Irish Endowed School Commissioners proposed, twenty years ago, to entrust a con- siderable power of conversion to the local administrators of charities, and recommended, " That as regards endowments requiring constant vigilance, as house property, Trustees should be empowered to vary the security, and with that view to dispose of the endowment." || Very recently the English Charity Commissioners summed up the whole matter in the following emphatic words: "Upon the grounds, both of public policy and of advantage to the charities concerned, we are disposed freely to facilitate these sales, upon terms which shall satisfy sufficiently the require- ments of the Act of Parliament. The trustees of a charity being a variable and commonly numerous body, not usually resident in the locality, and restrained moreover by the rules of law from acting freely in the management of the property and the expenditure of the rents, are rarely found to * 1 Yes. Sen. 223. t Att.-Oen. v. Wilson, 2 Keen 680. i Hansard ccxii., 1862. § Pari. Papers, 1873, viiu Evidence, p. 153. II Pari. Papers, 1857, xxii.,271. 87 be eligifcle landlords. The fluctuation of the annual income, moreover (arising from the varying charges and drawbacks incident to the tenure of landed estates, and in these cases especially difficult of control) creates a serious objection to the retention of such estates for the endowment of Charities ; since for such Foundations a fixed and regular income is especially desirable. The management of these properties is, in fact, almost universally found to be attended with a more or less excessive amount of expenditure. Instances have come under our observation in which the cost of management ias habitually amounted to one-fourth, or even a larger proportion of the gross rental, and this where the members of the Governing Body have been gentlemen of station and intelligence, having undoubtedly the desire to discharge effectively in every particular their duty as trustees."* There is but one argument for permitting charities to own land. It is urged that a landed investment gives the charity the prospect of an "unearned increment." This plea is stated with great force by Sir Francis Palgrave in his evidence before the Mortmain Committee of 1844. He insists that, " upon every principle of public policy, landed endowment is the best;"-f- because, whilst it is perfectly secure, it also increases in value with the increasing pros- perity of the nation. All other investments are either insecure, like machinery and ships, or unimproveable, like Consols and mortgages. The Church of Rome, alive to these facts, spends large sums annually in the purchase of lands in the most promising western districts of the United States. That during the long centuries of a charity's existence a considerable rise will take place in the value of its landed property, is a fact that will not be denied. The unearned increment is one of the most familiar of economical pheno- mena. Mr. Caird has calculated, from rating assessments and income-tax returns, that the annual value of the land * Report for 1872. Pari. Papers, 1873, Jixi., 16. t Questions 114 — 119, and 190. Whilst a witness of practical experience, Mr. Edwin Field, says : "Land is the worst kind of investment that a charity can be allowed to hold," (Question 443.) 88 in England and Wales was £41,000,000 in 1857, but had risen in 1875 to £50,000,000 — an increase of no less than twenty-one per cent., which at thirty years' purchase would be worth £270,000,000. In Scotland the increase was at the still more rapid rate of twenty-six per cent. — from £6,000,000 a year to £7,500,000. Even in Ireland an in- crease of six per cent, took place. Much of this rise has been "unearned," and has arisen from the exertions of neither the landlord nor the tenant, but of their countrymen in general. In France, every decree for the sale of Charity lands requires at least one-tenth of the income arising from the purchase-money to be annually capitalised, as a com- pensation for the loss of the prospective increment of the lands.* (On the other hand, it will be remembered that since 1875 the value of land has been imdergoing a steady decrease, which bids fair to continue. " I would," said Lord Derby, in his speech at Liverpool, last June, " I would strongly warn landowners against that common delusion that it is always better to hold on to an estate than to seU, because the price of land is constantly rising. No doubt that has been the experience of the last fifby years : but it does not follow that the experience of the next fifty years may not be, on the whole, in an opposite direction.") As a matter of fact, the value of charity estates has in- creased even more rapidly than the average value of landed property in England. It is by townsfolks that most of our charitable endowments have been created, and consequently an unusually large proportion of charity estates lie in or near great towns — the very neighbourhoods in which the "unearned increment" is the most considerable. "I can pass for miles," says Mr. Hare, " through streets in London which I personally know to be charity property; and I believe that one-fourth of the metropolis consists of such property.""!" Perhaps the most famous instance is that of King Ed- * Report for 1856 of the Administration G^ngrale de I'AssiBtance Publique, p. 26. t Tramactiont of Social Science Astociatum, 1866, p. 190. 89 ward Yl's School at Birmingham. It received its lands iii 1552. They then let for £21 a year. In 1873 their rental amounted to £14,000 a-year, and was still rapidly increasing. It may be added that at King's Norton, within a few miles of Birmingham, a similar endowment, of about the same value, was created about the same time, and that in the lapse of three centuries its annual value has increased only very slightly.* From these facts it is not unnatural that conclusions like those of Sir Francis Palgrave should be drawn. If it is desirable that charities should exist, it is desirable that they should have ample means for their work, and, consequently, that their wealth should be in that form which is likely to multiply their means the most. But this reasoning overlooks two important facts : firstly, that the increase of means which land produces is produced at the worst time ; secondly, that there is a point at which increase of means ceases to be desirable. The expectation of an unearned increment is not peculiar to the administrators of charities. It is familiar to all buyers and sellers of land. It is taken into account in the price of every acre that is sold. It co-operates with the other causes that we have already mentioned as enhancing the cost of land as an investment. A charity, therefore) that retains its land in prospect of this increment is sacri- ficing its present revenue for the chance of a remote and uncertain advantage. Now the early years of a charity are usually its most useful ones. We have shown at some length the inevitable tendency of endowed charities to be either neglected or perverted as time runs on. Hence it is utterly inexpedient to narrow their resources during their youth, for the purpose of augmenting their superfluities in their decrepitude. For there is a point at which any addition to the means of a charity becomes superfluous. The value of its property may go on increasing indefinitely, but the objects for which the founder designed it have usually a definite limit, * Pari. Papers, 1873, viii. 205. DO When that limit has been reached, any sui-plus of money will be useless or injurious, unless it be a surplus so large as to cause an application to the public tribunals for a new "scheme " for spending it. When that point is reached, the surplus may be made to do some good, though ex hypothesi, not the same good which the founder had in view. But until it is reached, the surplus is only an embarrassment to the administrators, and a standing temptation to wasteful expenditure and lax supervision. There have been London charities whose funds increased so fast that the only course left for the governing body was to dine out of them as often as they could.* Like Lord Brougham's city companies, the governors came at last "to fear the light because their deeds were hospitable." To borrow Mr. Anthony Trollope's felicitous distinction, " the Charity goes on and prospers ; at least, the Charity goes on and the estates prosper." The suggestion has, indeed, been thrown out that as a charity investment lands have the advantage, not merely of increasing in value, but of increasing with a self-adjusting increase. The same growth of population that augments the value of real property in a district, augments also the number of its poor. As a town advances, its need for schools, hospitals, and almshouses advances proportionately. The Birmingham Grammar School, already referred to, is an apt instance of this self-adjustment of the revenue to its objects. Conversely, those irruptions of the sea which have reduced Dunwich from a city to a hamlet, have turned much of its 155 acres of charity land into a mere marsh. But this observation is only applicable where the estates of the charity lie in the district from which its recipients come. Where the income is drawn from one place and is spent in another, there is no connection between the expansion of the supply and the expansion of the demand. The cases are very common in which a man has left his native village for some busier town, has risen to acquire property in his new home, and then in the days of his age has remembered his • See Lord Lyndhurst's account of a dinner of charity trustees at Green- wich. Hansard, Ixxxvi, 746. 91 youth, and devised the property for the benefit of his birth- place. In such a case there is eveiy likelihood that the town to which he migrated for the very sake of its prosperity will continue to prosper far more than the village which he abandoned for it. The revenue will continue to improve, like the parish from which it comes, although the parish where it is to be spent may stand still, or may decay. Thomas Seckf ord endowed his almshouses at Woodbridge, in 1578, with land in Clerkenwell worth £112 a year. Clerkenwell has increased until the lands have become worth £4454 a year ; and Clerkenwell's need of charitable relief has increased in at least an equal proportion. But it is at Woodbridge that the money is to be spent, in a town which has been decaying ever since the railway destroyed its shipping trade, and amongst a population of less than 5000 people, whose habits of thrift it has sapped for genera- tions. There is Jones's charity at Monmouth, which was endowed in 1714 with (amongst other property) 320 acres of land at Deptford. Deptford is now in London, but the wants of Monmouth have not materially increased since the days of Mr. Jones ; its population in 1868 was under 6000, whilst the school had a net rental of £2147 yearly, and a surplus of £1470 yearly, with a prospect of great augmentations when the leases fall in. James Ravenscroft devised thirteen roods of land, the rents whereof were to provide for the repair of his tomb in Chipping Bamet Church, and the residue of them was to be spent in the repairs of the church itself. But the land lay at Bethnal Green; and its rents amount now to fouiieen hundred pormda a year. Sometimes a single foundation possesses estates that expand in strikingly different proportions. John Lyon, who foimded Harrow, gave one set of lands to repair roads, and another set, more than three times as valuable, to support his noble school. This was in 1571. In 1864 the propor- tions were reversed. The school estates were worth little more than £1000 a year, whilst the annual value of the road estates was about £3500. Yet the school was more efficient 9^ than ever, whilst the road trust, since the passing of the highway laws, had become an useless anachronism, bene- fiting no one but the ratepayers. Under these circumstances, the appropriation which the founder had made of his different estates " has led," say the Public School Commis- sioners, " to a result which he never contemplated, and which is probably very remote from his intentions."* In like manner at Kugby time has not merely changed, but has actually reversed the value of two estates which suppoi-t the school. The land in Warwickshire which once supplied by far the largest part of the whole income of the school, now produces in the way of income but one part out of forty-six. The land in Middlesex, which was only given as an after thought, and produced but an inconsiderable portion of the whole income, now produces forty-five parts out of the forty-six. " The national and metropolitan site of the property bestows all and receives nothing, the provincial site bestows comparatively nothing and receives all."-!- Similarly, again, at Aldenham in Hertfordshire, a grammar school was founded in 1596, and was endowed with two estates, one in that parish and one in St. Pancras. But in 1860 the St. Pancras estate brought in more than £2550 a year, and the Aldenham estate less than £190. Had the Founder foreseen this, he would never have appropriated his benefits to Aldenham instead of to London, unless we suppose "that a fanciful attachment to place overcame his regard to his fellow-creatures." J A minor advantage of land as an investment has some- times been found in its obviousness. It can not be lost like a debenture, or forgotten like a sum in Consols. But though the land itself cannot be mislaid or overlooked, the facts of its ownership may be. If the trustee lets it to himself, or if the charity is a corporation sole, it may easily become confused with private property, as often happened in the case of grammar schools whose master was himseK the corporation. • Beport (Pari. Papers, 1864, xx., 208). t Ibid, p. 269. t Report of Popular Education Commission, I. 503. The Aldenham estate originally produced £27 a year. 93 Or if the title to the lands remains unimpaired the lapse of time may destroy the evidences of their area, especially as no minute acquaintance with the boundaries can be expected from the trustees. The Charity Commissioners reported recently that " The endowments of certain almshouses at Towyn in Merionethshire are in danger of being lost in consequence of questions that have arisen as to the identity of the land charged with the endowments."* These perils point to the necessity of creating compulsory registry of all charity lands, with a full set of maps, by which alone such dangers can be rendered impossible. Such a registry would complete the policy which was initiated in 1736 by requiring all future conveyances to charities to be enrolled in Chancery, ■]- was continued in 1853 by the provision enabling the Charity Commissioners to accept the custody of title deeds,J and was carried in 1855 to the point of authorising them to enrol " any deed, will, or document relating to any charity," so that their office copy of it will be legal evidence.§ Were such enrolments made compulsory, it would scarcely be necessary to take the further precaution which Mr. Hare advocates, II of making the condition, administration, and capacities of charity lands a topic of instruction in the primary schools of. the neighbourhood. The rudimentary germ of this plan may perhaps be found in the old custom by which the parish boys were periodically whipped at the parish boundaries. In the more modem shape it is advocated by its author not only on educational grounds as an apt means "of teaching history, topography, political and social economy, and of introducing technical instruction," but also for political reasons ; because it would stimulate the generosity or ambition of new founders, and also because " in such a state of public information we could without the smallest apprehension of evil repeal all laws that impede the dedication of land to perpetual uses, and could promote * Pari. Papers, 1877, xxvi., 14. + Ante, p. 76. t 16&17Vic., 0.137, s. 53. § 18 & 19 Vic, c. 124, s. 42. II Trantactions ofSneial Science Association, 187'', p." 327, 94 every disposition of its possessors to convert into public what was heretofore private property." The ' obviousness ' of land has always rendered the real property of corporate bodies a tempting subject of confisca- tion to jealous or embarrassed governments. The danger is sufficiently great to have rendered Roman Catholic donors very chary of investing their gifts in English land. At the same time there are politicians by whom this facility for appropriation has been regarded as an advantage. At the present day, of course, the official records of charity property of all kinds are sufficiently minute to have rendered personalty at least as readily discoverable by the State as realty ever was. Considerations of the undesirableness of allowing land to pass into mortmain produced between the reigns of Edward I. and George II. a succession of enactments to render void various classes of gifts of land for corporate and charitable purposes. But this only guarded against one evil by sub- stituting a greater. It is possible to avoid the danger against which these enactments are directed without inflict- ing upon the interests of charity the losses which they cause. The law may permit land to be devised for charitable purposes, and yet keep it from passing into the hands of the charity in the shape of land. The wealth of charities may be converted into an innocuous form without the necessity of impoverishing them. Mobiliser les terres is a simple clue to the solution of the great political problem of Mortmain. With this object it was proposed by the Law Amendment Society's Committee, in 1861, to abolish the distinction between real and personal estate in such perpetual dedica- tions of property, and enable every person to give land as freely as he can give money ; but, at the same time, to require that all lands so given or devised, except such sites or plots as 'might be necessary for the institution that is founded (as, for example, the land on which the church, or school, or hospital stands), should be sold or converted into money within seven years. The land thus excepted for occupation purposes need never be of any great extent ; the 95 largest quantity required would be in the case of an agricul- tural college. This plan of conversion has been accepted as feasible by no less practical a statesman than the present Lord Derby. In 1869 he said that, " It would be well to impose beforehand upon all future founders some particular manner of invest- ment. If we continue to allow, as at present, any individual to dispose in perpetuity of a sum of money, it does not seem unreasonable to insist that the capital shall only be invested in one way, that is, in the public funds."* An apt precedent for such an enactment might be found in the provisions of the Act of 1870, which authorised charities to lend their money upon mortgages of land with- out complying with the formalities of the Mortmain Act ; and which expressly directs that such a mortgage shall entitle the charity only to a sale and not to a foreclosure, and that if, by release or othei-wise, the equity of redemp- tion should become barred, the land shall be held on trust for sale.f If the legislature should consider it important to protect the charities which it may thus compel to sell their lands, from the depreciation in value to which money is subject, it might provide that (except where the charity was in immediate need of money), the sale should not be made for a lump sum, but for a perpetual rent charge, varying with the price of com, after the manner of those created in com- mutation of tithes. By registering these rent charges they might be protected from the objection which renders an ordinary rent charge an undesirable investment for charities — ^that it is difficult to give judicial proof of it if the land- owner choose to refuse payment, and hence that it is apt to become barred by the Statute of Limitations. If experience disclosed no difficulties in the working of this plan, the principle might then be carried to its full extent by applying it to the lands of existing charities. Forty years ago Mr. J. S. Mill wrote that the very first step in a reform of our Foundations would be " to dispose of the * Journal o} Society of AHs xvii., 686. t 33 and 34 Vic, u. 34, ,s. 2. 96 estates of all the public trusts in Great Britain by sale to the highest bidder, and invest the proceeds in the stocks or other moneyed securities."* The vast quantity of land that would be brought into the market by such a measure would of course render it necessary to spread the sales over a large number of years. Half a million acres, one-sixtieth of the entire surface of England, cannot be sold in a day. But Mr. Hare, who approves of the principle, considers that a period of twenty-five years from the passing of the enactment would be sufficient to allow for the due sale of the whole. -f It is unnecessary to remark upon the opportunity which the conduct of these sales would afford to the Government for facilitating the acquisition of land by co-operative farming societies, by peasant proprietors, by yeoman capitalists, or by any other class which the investigation of our present agricultural crisis may indicate to statesmen as the missing link between land and profits. It is difficult to believe that some vast change in our present agricultural system is not inevitably near ; it is equally difficult to discover any field where it can be effected with so little disturbance of indi- vidual rights, as in the lands that are free from all individual ownership. Without waiting, however, for the time when public opinion is ripe for any general compulsory measure, much may be done to facilitate that conversion of charity land into money which has been going on for the last quarter of a century. Since 1853, when the Charity Commissioners first received power to sanction these sales, no fewer than 4481 have been authorised, producing in purchase money the total amount of £4,382,607 13s. 7d. The annual average of the last five years has been £328,817 4s. 8d. But for the Act of 1853, none of this land could have beerl sold without a Chancery suit, and very little of it, therefore, would have been sold at all. Most grave social injury must have been inflicted by the law which had practically excluded this land * Jurist, 1833, p. 26. t Transactions of Social Science Aisodathn, 1866, p. 189, 97 for centuries from the public market, and left it in the Dead Sea of mortmain. But though the legal difficulty has been thus greatly- diminished, there are still many forces at work to impede the sale of charity estates. In most cases the Trustees are so numerous that it is hard to get them all together, and still harder to get them, all to agree. In any case they will shrink from a wearisome negociation with the Charity Commissioners, and the worry of a sale, and the chance of a lawsuit with the purchaser. They will feel little desire to lose the dignitiee of landed proprietorship and the courtesies of the shooting season. Their intelligent and expensive subordinates, the steward, the surveyor, and the accountant, have no desire to lose their offices. To a governor of the great Birmingham Grammar Sdhool the proposal to convert its estates into Consols naturally appeared to be " the most astonishing madness that the imagination of mankind could conceive."* The personal necessities or personal interests which in the case of a private owner might outweigh all this and bring about a sale are entirely lacking. Hence charity trustees are not very ready to take the initiative in selling their estates ; and the readiness is unfor- tunately in the inverse proportion to the size of the estate and to the consequent desirableness of rendering it market- able. But both the English Charitable Trusts Actf and the Irish Act of 1867 J require initiative action from the trustees before the Commissioners can sanction any sale. The English Endowed School Commissioners took a more eifectual as well as a safer course, by placing the power in the hands of a central authority. Under the advice of Sir Arthur Hobhouse they introduced in thei r school schemes, clauses which provided for the sale of school lands at the discretion of the Charity Commissioners, with- out requiring, as does the Charitable Trusts Act (16 and 17 Vic, c. 137, s. 24), that the Trustees should take the * Pari. Papers, 1873, viii., 223. + 16 and 17 Vic, c. 137, a. 24. t 30 and 31 Vic, c. 54, s. 14. Its language is copied from the English Act. H 98 initiative, or even requiring that they should assent to the sale. The clause ran : " The governors shall from time to time, when and as favourable opportunities offer, if the Charity Commissioners deem it to be for the permanent benefit of the Trust, and with their sanction, sell such real estates of the Trust as are not required to be used for the objects of their scheme ; and shall, with the like sanction, invest the proceeds in such mode as the Court of Chancery, in exercise of its statutory powers, or as any Act of Parliament may authorise for the investment of trust funds in general, or in such other securities as the Charity Commissioners shall approve."* Moreover, both the English and the Irish Acts put a further check upon sales by requiring, not merely that the full market value shall be paid for the land, but that the sale, " under the special circumstances," shall produce some distinct advantage to the charity, as, for instance, by increasing its income. It is not sufficient that the public will be benefited and the charity not injured. The Commissioners adhere loyally to this requirement. Its observance, they say in their Eeport for 1872, " is strictly insisted upon by us in all cases, regard being had not only to the present value of the property to be sold, but also to any prospective improvement that may be reasonably anticipated. The pribes realised have, in fact, led almost invariably to a large accession of revenue to the Charities, the direct augmentation of the income being greatly enhanced, moreover, by the more or less complete relief from all outgoing and expenses of management, and also by the entire regularity of payment.""!- Moreover, it must not be supposed that the sales which take place represent the final withdrawal of so many acres of land from the evils of mortmain management. The estates change, but do not vanish. The Act of George II., as we have seen, strangely omitted to place any restriction on the purchase of lands by charities ; and full advantage is taken of this liberty. The Charity Commissioners say, in their * Pari. PaperB, 1873, viii. Mr. Alderman Lawrence's questions, Nos. 2923-6 ; also Nos. 1415 and 3037. t P.irl. Papers, 1873, xxi., 10. 99 report for 1855 : " It is generally inexpedient to permit the conversion of the real endowments of charities into person- alty, and our orders authorising sales are in all ordinary cases accompanied by a condition imposed on the trustees, that the purchase-money shall be re-invested in land at the earliest opportunity, under our direction."* The Charitable Trusts Amendment Act favours these reconversions, by permitting them to be effected by charitable corporations without any licence in mortmain,-f- in direct opposition to the policy of the Act of 1736. During the five years 1874-8, Stock standing in the names of the Official Trustees was sold or retransferred by them to the extent of £775,509 10s. 9d.; and this was principally for reinvestment in land. Land, too, is often bought by charities as an investment of moneys that have not arisen from the sale of other land. King Edward VI. 's School at Birmingham " frequently, with the advice of the Charity Commissioners, purchases real property, sometimes out of income and sometimes out of capital."! Such investments are habitually recommended by the advisers of charities, and are often expressly sanc- tioned in their private Acts of Parliament. In Scotland they are pronounced to be undesirable for private trusts, but "generally a very suitable mode" for investing the money of mortifications — that is, of trusts of perpetual duration.§ We have already commented upon the fact that the English Act of 1736 imposes no check on these purchases of land by charities, although the economical or political evils are exactly the same as in the case of land obtained by donation or devise. III. — Extent of Gift. Without utterly prohibiting a man from giving any of his property to endow a Charity, it is still possible for the law to impose restrictions as to the amount of property so * Pari. Papers, 1856, xxii. 218. + 18 & 19 Vic, e. 124, s. 35. J Pari. Papers, 1873, viii. 206. § Bell's Lectwes on Conveyancing II., 9.15. H 2 100 given. Such restrictions may take the form of prohibitions to give property amounting to more than a specified absolute value, or to give property amounting to more than a speci- fied proportion of the giver's whole fortune, or to give any but a specified quantum of ownership in whatever property is given. Familiar instances of all these may be found. A restriction of the absolute value of the gift occurs in the Church Building Act of 1803, which enacts that under the particular powers of gift and devise conferred by it — "No more than one such gift or devise shall be made by any one person, and that if any such gift or devise shall happen to exceed five acres in lands or tenements, or the value of £500 in goods and chattels, every such gift or devise shall be good and valid only to the extent aforesaid ; and it shall be lawful for the Lord Chancellor for the time being, on petition, to make order for reducing every such gift or devise to and within the said limits, and for allotting such specific five acres, and if occasion should require, such specific goods and chattels, as in his judgment shall be most convenient."* Similarly the Statutes of Ontario enact (chap. 216, s. 19) that no single gift of land to a religious society must exceed the annual value of a thousand dollars. (They also require that all land so given must be sold within seven years, and the purchase-money be invested by the society in pure personalty.)-f- More commonly, however, the rule takes the form of a restriction of proportion, and for the sake of protecting the expectations of near relatives, bids the owner be just before he is generous, and forbids him to give away more than a certain share of his property. Such restrictions may, of course, apply to gifts made to any private person outside the family circle, as well as to gifts made to charities. It is, indeed, in that more general form that they still prevail in the modern law of wills throughout the Continent, and even in our own Channel Islands; as they once prevailed in English law both in the case of wills, and to some extent even in that of con- veyances inter vivos. | But it is only in the narrower form of a restriction upon gifts to charities that they are ever likely to reappear in this country. In that form, there is much to be urged for their restoration. * 43 Geo. 3, u. 108, s. 2. + Cf. p. 95, supra. J Glauvil vii., 1. 101 It will, indeed, follow from principles which we ha'v&i, already laid down, that no such restriction must be so extensive as to amount to a practical prohibition of new Foundations. The law must not deter men of wealth from recognising the responsibility that lies upon them, and using God's gifts for all the purposes for which they were given. The limit of the restriction may not be easy to fix. The precise extent of the Christian obligation of almsgiving, it is, indeed, a subtle question of casuistry to determine, even in any given individual case. And stated as a general ethical problem, — ^how far the immediate and ordinary claims upon men's wealth must be postponed to those which are less obvious and more exceptional, — it probably does not admit of any general solution. But it is at least clear that, up to some point, however hard to define, the immediate and ordinary claims are imperatively entitled to priority. If so, it may be necessary for the State to secure them that priority. It is not sufficient to say that the general principle of Legitim has been tried in England, and has been abandoned by common consent for more than a century and a half, as unsuited to English habits and ideas. It is quite true that our nation is practically unanimous in preferring the rights of free will-making and of parental authority to the claims of the surviving members of the household ; although it is remarkable to how great an extent the exercise of those legal rights is restrained by moral feelings that survive from the days when our law reserved to the children their partes rationabiles as stringently as the Continental codes still reserve the portion Ugitime. The " legacy hunter " is as much despised here as abroad. An ordinary English Will distributes the maker's property with an impartial fidelity to the claims of blood, that allows little scope to personal preferences, or even to moral distinctions. Very faithfully does George Eliot depict the traditional sentiment of at least our middle classes : — "To live respected, and have the proper bearers at your funeral, was an achievement of the ends of existence that would be entirely nullified if, on the 102 reading of your ■will, you sank in the opinion of your fellow men, either by turning out to be poorer than they expected, or by leaving your money in a capricious manner, without strict regard to degrees of kin. The right thing must always be done to kindred. The right thing was to correct them severely, if they were other than a credit to the family ; but still, not to alienate from them the smallest rightful share in the family shoe-buckles, and other pro- perty." * But a jurisprudence which utterly repudiates the general principle of a Legitim, may nevertheless, with perfect con- sistency, deal with charitable bequests in an exceptional manner. No ordinary testator is likely to avail himself of his legal power of giving his property away from his rela- tions to a person unrelated to him, except where he has found singular misconduct in the one or received singular service from the other. But in the case of charitable bequests there are special forces at work to conflict with the impulses of family affection. Vanity, remorse, sacerdotal pressure, benevolent zeal, may prompt a gift to a charity, though they would not prompt a gift to a stranger. A man, too, who has taken a causeless dislike to his relations, finds a salve to his conscience if in gratifying his spite he benefits some laudable institution. This far greater hazard of injustice to the testator's family is the justification of those principles of English law, which have called forth so much adverse criticism, by which a man is allowed to devise his estates to his mistress, but is forbidden to devise them to his Church. Where there is special danger the legislator may well furnish special protection. He will foresee, but can hardly approve, such wills as that by which Eliza Parks, of Clones, in 1844<, directed her executors, " After payment of £1 per month to my sister Margaret, /or subsistence, to apply the residue, if any, at my death, for the benefit of the Primitive Wesleyan Methodist Society in Ireland."f It was probably neither from an unusually guilty nor an unusually tender conscience that * Mill on the Floss, Bk. iv. ch. 1. ' t Pari, Papers, 1846, xlii., 113. 103 Maurice Roche, of Aliane, declared his will to be " that half the profit rent of my part of the lands of Cappafadun shall be laid out by my executors in charitable purposes, accord- ing to the words of my intentions, which are thus : — For the benefit, of my poor soul, God help me, as a kind of atone- ment for the great crimes I have committed against the commandments of God, I do award, and it is my will, part of it will go to the benefit of the poor souls of my fellow creatures, both male and female, that I have in course of my life kept as much as one penny of his, her, or their money or substance by fralid, deception, or ignorance, by mistake or forgetfulness, or any way in the world. I do award, and it is my will, that part of the said annuity do go to the benefit of those my f eUow creatures, both male and female, that I had comipted their innocence, and those that I had trespassed on their reputation, or that I was the instrument of their committing mortal sin." * By means of a charitable Foundation, a man may so connect his name with his property as to preserve it for ever, though the English law, ia its inveterate dislike of perpetuities, will not permit him to do this in any other way, even by the strictest entail, for more than two genera- tions. The most striking instance of a triumph of posthu- mous vanity over family ties is that of Tancred, who left his lands away from his sisters to found a charity, avowedly that he might keep the estate consolidated and in connection with his name.-f- The property which he gave in charity * lb. p. 113. t Hia indenture of settlement, dated 1721, was made " in consideration of the affection which he bore to his Manor House of Whixley (the place of his own birth, the seat of himself and family for a long series of time,) and being desirous that his estate there, so compact in its situation, and so commodious by the improvements made at the expense and industry of himself and ancestors, should never be dismembered by a distribution amongst heirs . female ; but that the same should be enjoyed by the heirs male of his own body, as long as any such should be, by which the said estate would be kept entire, both in his name and blood ; and upon failure of such heirs, should be vested in the Trustees thereinafter named, and their successors for ever, to preserve the payment of the several yearly sums for ever thereby granted and limited." He then proceeds to direct this manor house, and all the out- buildings belonging to it, to be maintained for ever, " and that none of the aforesaid buildings should be pulled down or in any respect altered, or any new buildings erected." (Charity Commissioners' Report of 1866, p. 4.) 104 produces upwards of £4000 a, year ; the amount which he bequeathed to his five sisters was " one shilling each out of all my real and personal estate." " He seems," said Lord Keeper Henley, in adjudicating upon his gift, " to have cast off all natural affection."* Orations in eulogy of him are nevertheless still composed and delivered annually ; his modest consciousness of merit having led him to prescribe in his Foundation that every anniversary of his death should be honoured with a sermon and three Latin speeches. Elsewhere in Yorkshire there is an almshouse for six old people, with a gi-atuitous boarding-school for twelve boys — all the eighteen of whom for ever are to wear an R embroidered on one shoulder, to commemorate the fact that the Founder's name was Read.-f- In both these cases the local effects of the charity have been eminently deleterious.]: * 1 Eden 10. t Journal of the Society of Arts, xvii. 685. t Part of Tancred's gift was to establish studentships ; and they have proved beneficial. But his great object, the hospital at Whixley, proved worse than a failure. " We cannot," say the Charity Commissioners, " find that it has ever been in such a state as to afford a comfortable or even a respectable mode of life to its inmates. And \Ye have been furnished with a number of extracts from the governors' books and minutes, extending from the year 1809 down to the present time, disclosing a state of quarrels, heart-burning, and misbehaviour among the inmates, which appears to have had little intermission, and which must have made the place wretched to its inmates, and highly inedifying to the neighbourhood. These mischiefs have not diminished with the progress of the time. On the contrary, the violent and outrageous character of hostilitips which broke out among the pensioners during the autumn of 1865 was calculated to bring more scandal upon the place than anything which has come under our notice." "The foundation of the hospital is radically vicious in principle. It is, indeed, di£Scult to see how such an arrangement can be expected to work harmoniously. The plan is to take twelve men, past middle life (and therefore of fixed habits), who have declined from their original rank of life (and therefore are likely to be inferior in character and soured in temper), and to place them away from the comfort and the restraint of their families, in a locality with which they have no association, without any common tie between tbem, either of religion or of profession, such as may be found in other ccenobitical establishments, without any efficient discipline to control them, without any occupation to employ them ; and there to leave them to pass the last years of their life among strangers. The plan seems much more calculated to answer the Founder's expressed wishes of perpetuating his name and keeping his estate intact, and saving it from division among his sisters and their families, than to promote the welfare of those whom he wished to be his living monuments for ever." (Pari. Papers, 1867, xx. 24.) 105 In some cases of merely petty Foundations, ingeniously circuitous means have been found of associating the Founder's namfe with his gift. At Melbourne, in Derbyshire, there are two instances of this : the gift of Henry Greene, in 1679, to supply four poor women every 21st of December with four green waistcoats, lined with green galloon lace ; and that of Thomas Gray, in 1691, to buy annually for poor men and women coats and waistcoats of grey cloth.* Similarly at Barnes, in Surrey, Edward Rose, in 1652, left land in trust, amongst other purposes, to preserve rose trees on his grave.-f Family pride took another direction in the bequests which Elizabeth Townsend made, in 1820, to the churches of Westbury and Warminster, in Wiltshire, of £3 yearly apiece, on condition that, on the Sunday before Midsummer Day, there should be sung at the morning and afternoon service " the anthem composed by my late husband's grandfather from the 150th Psalm." J The buildings of a Charity at Saltash, in Cornwall, bear this inscription : — " This almshouse is a gift of James Buller, of Shillingham, Esq., deceased, whose glorious memory as well as illustrious favours ought not to be forgotten, but kept, as 'tis to be hoped they will, in everlasting remem- brance. 1726." According to the Inspector's report, the premises are a nest of disease, and a permanent nuisance. § Lord Hatherley has declared it to be his opinion that " the preference of the poor in general to the testator's own relatives is far more often the result either of superstition or vanity than of benevolence In almost all posthu- mous charity, charity is but another name for vanity." || He cites the case of a man who founded a large hospital, and left £400,000 for its endowment, "disinheriting his own family, and leaving them paupers, for the sake of being designated at public dinners as a great benefactor."ir And * Charity Inquiry Commissioners' Seventeenth Report, p. 296. t Charity Inquiry Commissioners' Tenth Report, p. 589. t Twenty-seventh Report, p. 781. § Report of Popular Education Commission, iv, 321. II Transactions of Social Science Association, 1859, pp. 69, 190. IT Infra, p. 250. 106 even that thorough-going advocate of charitable bequests, Mr. Hadfield, whilst urging that those which had come under his cognisance were "generally dictated by the highest considerations that can actuate the human mind," concedes that " there may be a little vanity at the bottom of it — I will not deny that."* Lord Komilly, in his evidence before the Schools' Inquiiy Commission, recommended as the result of his experience, a provision " that where a man has relations as near in degree as nephews or nieces, he should not be allowed to dispose by will of more than a certain portion of his property in favour of a charity ; and that that aliquot part should be propor- tioned inversely to the nearness in degree of the relative he leaves behind him, like legacy duty. This opinion has arisen solely from my having seen cases which I thought very hard. I have one now present to my mind where a man left a large fortune away from an only child, a girl whom he had brought up in affluence, and whom he left in straitened circumstances." It is true that at present the English law of succession makes differences of degree only, and not of kind between the various classes of relatives. Yet it is easy to see that there is a specific difference between the claims of those near relations whose wants even in his lifetime the deceased would have been expected to see supplied, and the claims of remoter ones, whom society does not regard it as incumbent on him to provide for or even — if his fortunes rise — to extend his bounty to. The line between the two classes will be drawn differently in different times and places, but such a distinction of classes is universally recognised. Indeed, English jurisprudence has in more than one instance gone so far as to draw a definite boundary line between them. The Poor Law binds a man to provide for certain relatives only ; Lord Campbell's Act permits compensation for a man's death to be made to certain relatives only ; and the law of Simony permits a double resignation bond in favour of certain rela- tives only. Why shovild not a similar distinction find a * Keport of Jlortmain Committee of 1844, Evidence, Ij. 343. 107 place in the law of Charities ? The principle of a 2Mr8 ■ratlmiahiliii was sounder than our present rule of allowing a man to rob even his nearest heir in favour of a stranger, but of preferring even his remotest heir to any Charity. It is possible that in framing any such provision, a further distinction might be revived, familiar in most of the primi- tive and the feudal codes of real property law, and in Glanvil's day familiar m. our own— the distinction which gives less power of alienation over inherited property than over purchased property. The old antithesis between the hereditas and the- qucestits has disappeared from English law, except in such rare cases as where it is employed to determine between two " stocks of descent." But popular morality recognises a salient difference between the man who devises away from his family line what came to him purely by virtue of his being a member of that family ; and the man who devises away only that property which has been accumulated by his own industry or self-denial. In New York, by a statute enacted in 1860, ajiy person having a husband, wife, child, or parent, is precluded from bequeathing more than one-half of his net property to any society, association, or corporation.* In Georgia, a gift by will to charitable uses is made void if the testator has a wife or issue living, unless made ninety days before his death. The Bill of 1845, "to alter and amend the laws relatiiig to the disposition of property for pious and charitable purposes," contained a remarkable provision for adjusting the conflicting claims of the kinsfolk and the Foundation by a more flexible mode than that of a defined legitim. Lord John Manners proposed by it to provide that — " If after the making of any such gift or grant for pious or charitable uses or purposes, any such testator, donor, or grantor, shall have died leaving any parent, wife, child, or grandchild, who by reason and in consequence of such gift or grant shall have been left destitute, or insufficiently provided for, it shall be for every such parent, wife, child, or grandchild, to apply to the Lord Chancellor or Lord Keeper for the * Laws of 1860, ch. 360, sec. 1. Under the Law of 18i8, ch. 319, s. ti, only one-fourth was allowed to be given ; and in this form the clause reappears in the laws of Iowa (Rev-'sed Laws of 1860, sec. 1198). 108 time being, by petition in that behalf, setting forth all the circumstances of his or her case ; and thereupon the said Lord Chancellor or Lord Keeper shall forthwith proceed to inquire into the facts so alleged in such petition, in such manner as to him shall seem most expedient ; and if, upon such inquiry, the said Lord Chancellor or Lord Keeper shall be fully satisfied of the truth of the said facts, then it shall be lawful for him to make such order as to him shall seem reasonable for allowing to every such parent, wife, child, or grandchild, for his, her, or their life or lives, or for any shorter period or periods, so much and such portion of the proceeds or profits arising from the property, estates, or efifects so given or granted as aforesaid, as may be sufficient for the support or maintenance of such parenf, wife, child, or grandchild, dviring any such period as aforesaid ; and from time to time to alter or annul such order, and to make such order or further order and regulations in that behalf as the justice of the case and the wants of the several parties interested may seem to him to require."t But even if no restraint be placed upon the amount of property which may be given, it is still possible to restrict the extent of interest, the quantum of ownership, which the donor may transfer in that property. An instance of this may be found in the English Act of 173G, which although passed to cut down gifts of lands to charities, nevertheless imposed a minimum limit to them, and provided that every such gift must " take eifect in possession immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him." This apparent paradox is of course explained by the reliance which the framers of the Act placed upon human selfish- ness. They saw that the more absolute a gift was required to be, the less was the chance of a man having the generosity to make it. The section has doubtless had all the effect they designed; and even more, for it rendered void many gifts, and even many sales, to charities, in which some reservation or agreement that caused no practical detriment to the value of the gift, had been inserted from technical reasons of conveyancing. Thus it was doubted if a charity could buy land except for a lump sum ; consequently in those districts where vendors decline to sell except for * Pari. Papers, 1845, iv. 543. 109 perpetual rents, charities practically could not buy land at all. So again the clause made it impossible for a man to give a site for charity premises without giving also, to no purpose, the minerals under it ; or to give a park or a churchyard without abandoning all right of way through it ; or to give one of several building lots without depreciat- ing the value of all the others by releasing it from their common covenants for preserving the uniformity of the buildings, streets and sewers to be placed there. In all such cases the deed was void. These mere technical reservations have now been rendered innocuous by Lord Cranworth's Act of 1861.* But the law still forbids the reservation to the donor of any substantial benefits from the charitable gift ; though the wisdom of the prohibition may be doubted. Its only purpose is to deter him from giving, and if the State does its duty in rendering all Charities worthy to receive gifts, that purpose ceases to be politic. Still more open to challenge is the rule contained in the same section of the Act of 1736, that no charitable gift of land shall contain any power of revocation. Such a rule can be justified only by the necessity of imposing every possible barrier upon the endowment of Charities. Where that necessity does not exist the rule is useless. In voluntary gifts it is the general policy of law to favour powers of revocation, in order to afford an opportunity for reflection and reconsidieration ; and that favour is the more, and not the less, required in the case of charitable gifts, for they are peculiarly liable to be made under undue influence. "The policy of the law ought, rather, to be to leave the donor as large and as long a discretion as is possible."-f- In Lord Hatherley's scheme for a Mortmain law J he proposed that every instrument of gift inter vivos to a charity should remain inoperative for a year after its execution, and throughout that year should be revocable by the donor ; thus reversing the policy of 1736 by making a power of * 24 Vic. c. 9. t Report of Mortmain Committee of 1851, Evidence, Q. 704. X Transactions of Social Science Association, 1859, p. 191. no revocation not impossible but (for a time) essential. His course is preferable to the intermediate one of simply leav- ing the insertion of the power, and its duration if inserted, to the discretion of the donor. For, on the one hand, the donor who most needed an opportunity for reconsideration would be the one least likely to reserve it, and on the other hand the existence of a life-long power of revocation might keep a charity in an injurious state of uncertainty for many years. It is not likely that a Charity, working under the eye of a living Founder, would become so utterly corrupt as to deserve summary suppression by him ; whilst the mere possibility of summary suppression would seriously impair the present benefits of many forms of charity. Half the value of an almshouse or a pension lies in the lifelong security that it inspires. IV. — Persons by Whom Given. It is more likely that in this respect a State would create facilities than restrictions, that in the case of charities it would (as has occasionally been done, even in England)* suspend the rules which incapacitate some classes of persons from making dispositions of property, rather than add to their number. It is difficult, too, to see what readily definable classes of persons — from within the ordinary limits of majority and sanity — could be selected for incapacitation, either as peculiarly likely to give undesirably large sums or as peculiarly likely to give to undesirable charities. It is, however, possible that, for the protection of family property, persons who had relations of a very near degree might be altogether precluded from creating any charitable Foundation. This would simply be to elevate into a prohi- bition such partial restrictions as are now imposed upon charitable gifts made in India by persons " having a nephew or niece or any nearer relative," or in Georgia by a testator who leaves " a wife or issue."-)* * Infra p. 261. t Supra p. 107. Ill V. — Peesons to Whom Given. A proposal, which it is difficult to treat seriously, has been oiFered, that gifts should only be permitted to be made to Charities that already exist. Such a reform would go either too far or not far enough. If the condition of our existing Endowments warns us to create no new ones, it cannot be desirable to augment the resources they are wasting. The opposite suggestion would have been more plausible — that Endowments should «nly be permitted for the creation of new Charities. The most important object which the State has in view in permitting endowments — that of providing a field for Experiments — would be at once frustrated if Founders were restricted in their beneficence to the limits of such charitable designs as have already been established. Some reformers, like Mr. Fitch,* would make it illegal to devote any money to public objects except through the agency of some recognised body which is amenable to public control. Others propose the more moderate course of re- quiring that every Foundation should be examined and approved on behalf of the State before it took effect. It is doubtless well to provide a public authority which, like the Administration Gen^rale de V Assistance Publique of Paris, can accept the gifts of the charitable for application at its own discretion; thus relieving the giver from the trouble of finding Trustees and the dangerous enterprise of planning a detailed scheme of Trusts. But to make this public authority the only channel for charitable gifts would be to cut down the number of those gifts very materially. Few Founders would have the rare wisdom and still rarer self-denial of Michael Bernard Mullins, who, in 1873, bequeathed £30,000 to establish a Convalescent Hospital at Dublin, " to be subject in all respects to the approval, control, and direction of the Board of Bequests, to the fullest extent of their legal powers." Apart, however, from such schemes, there are some * Fraser's Magazine, 1869. 112 restrictions on a Founder's choice of donees which deserve grave consideration. The law may prohibit certain classes of private individuals from being made the trustees of charitable gifts; or it may go so far as altogether to prohibit private trusteeships for charities. An instance of the former course may be found in the rule of the Code Napoleon which forbids a confessor to receive any gift (whether in trust or not) from his penitent; and in the analogous suggestion which has been made in this country, to declare void all bequests for charity which are made through the minister of religion who attends the donor on his deathbed. It would, however, be both a more effective and a more convenient barrier to unfair sacerdotal pressure, to require all charitable bequests to be made at a sufficient interval before the testator's death. For, on the one hand, a designing priest will have no difficulty in securing a colleague to act as trustee for any gift which he may extort from his penitent's fears ; and on the other, it is hard to deprive the testator of the opportunity of employ- ing as his almoner a man in whose piety and judgment he puts so much confidence that he has chosen him as the guide of his last hours. The latter course of permitting no private person what- ever to become the trustee of a charitable Endowment, but requiring it instead to be given to a body politic or " fictitious person," has found many supporters. One of the most remarkable difierences between the English law of Charities and the French, relates to the constitution of the administrative owners of the endow- ment. In England a founder names one or more persons in whom he has confidence to act as trustees, and carry into effect his benevolent purposes. In France, on the other hand, he is restricted as to the mode of administration, just as we have seen that he is restricted as to the choice of his purposes. At either point official authority comes in. Every charitable bequest must be made to a personne civile • or, in other words, an " ^tre fictif , auquel la loi reconnait une partie des droits qui appartiennent aux personnes ordinaires 113 et qui peuvent recevoir des liWralitds." Such a personne civile must either be an existing official public establishment (for instance a public hospital, a parish church, or a comviune), or it must be an establishment of public utility, created or to be created only by a decree of the Council of the State.* Many observers have desired to see all the endowed charities of England placed in the care of Corporations ; since the incorporation of the trustees, as a single fictitious person, enabled a majority to act as a quorum for the execution of leases and the performance of all other administrative acts, saved the constantly recurring expense of making a conveyance of the estates whenever a new trustee was appointed, and that of applying to Chancery to appoint one (if the founder had given no power of appoint- ment), besides tending to prevent that confusion of the charity property with the private property of the trustee, which sometimes takes place where the trust has come into the hand of a solitary survivor. The cost of the deed of conveyance was often considerable. The trustees of Brandon School, whose gross annual income is £57, reported in 1868 that their last deed cost them £67 10s. 7d.i- And the expenses of proceeding in Chancery to obtain new trustees were often overwhelming, especially when, as sometimes happened, the Court had to find out which of an ancient group of trustees had ultimately survived the others, and then had to find out who was now that survivor's heir. Popham's Charity at Chippenham, worth only £21 a year, had to spend £120 besides the cost of the conveyance. I Lee's Charity, at Fittleworth, with less than £100 a year, spent £500 in a suit for this purpose which began in 1801, and was not completed till 1812.§ Happily both conveyances and suits are now rendered unnecessary by the Charitable Trusts Act of 1860, || which enables the Charity Commissioners to appoint new trustees * Amold'a Schools and Universities on the Continent, p. 21. + Report of Schools Inquiry Commission I., 445, J Charity Inquiry Commissioners' Twenty-ninth Eeport, p. 1249. § Thirtieth Report, p. 776. II 23 and 24 Vic. t. 136, ss. 2-4. I 114 and vest the property in them whenever the gross income of the foundation does not exceed £50 ; and to do so even in cases of greater amount, if a majority of the existing trustees desire it. So successful has this reform been in diverting business from costly tribunals to a gratuitous one, that since 1860 the Commissioners have made 6202 orders under these sections, either for appointments of trustees or for other matters there authorised; whilst Chancery and all the other courts of concurrent jurisdiction have only made 112* Such facilities are rendered the more important by the precautions which are now so commonly taken for securing the removal of ineflBlcient trustees, and which necessarily increase the frequency of new appointments. In appointments by the Board, the recommendation of the old Trustees is always invited, and, except where the appointment is open to objection on public grounds, is as a matter of practice accepted. Greatly as this reform has diminished the disadvantages of an unincorporated trusteeship, a provision still more potent has been added by the creation of an Official Trustee of Charity Landsf and of Official Trustees of Charitable Funds -,1 in whom the legal ownership of the real and the personal estate, respectively, of a Foundation may be vested, whilst aU the powers of administration will still remain in the ordinary local trustees. And power has been given to the majority of any duly constituted meeting of the trustees to act as a quorum of the whole.§ These changes have not put an end to the demand for a general incorporation of Charities ; as is shown by the Bill of 1837, II and by the Act of 1872, which empowers the Cha- rity Commission to incorporate any Trustees who apply to them to do so.lT But this power has only been exercised five times within the last four years ; and the fewness of * Report of 1879, p. 3. + 18 and 19 Vio. c. 124, s. 15 ; of. 16 and 17 Vic. c. 137, s. 47. t Jnfi-a, p. 265. 16 & 17 Vic. c. 137, s. 51 ; and 18 & 19 Vic c. 124 s. 18. § 32 and 33 Vic. c. 110, s. 12 ; superseding 23 and 24 Vio. ^. 136, a. 16. II Pari. Papers, 1857, I. 321 ; IV. 197. IT 35 & 36 Vic, c. 24, s. 1. 115 the applications for its exercise shows that the advantages which incorporation once possessed have now disappeared. On the other hand, there have always been serious dis- advantages in rendering any charitable Foundation a corporate body. The individual administrators are exempt from that legal responsibility to which they would have been subject had they been mere Trustees. Some act of misappropriation or of folly is committed under the common seal, and no one is amenable. This defect is so grave that whenever a Charity is incorporated by special Act of Par- liament care is now ^ways taken to impose this individual responsibility.* It is highly desirable that a general mea- sure should be passed, to extend this liability to all incor- porated charities. The absence of legal responsibility becomes, of course, most fatal in those Foundations where the corporators are the recipients as well as the guardians of the revenue — a state of things which is found in many of the older almshouses, as well as in some old grammar- schools, in which the master has been made a corporation- sole. In such, the hazards of misconduct are so great that one of the first steps in any reform of our charities should be a general dissolution of this class, if not (as Mr. Fearon desires) of every class, of charitable corporations. The absence of responsibility for acts done under the common seal is rendered the more serious by the facility with which the seal may be applied to documents informally or frau- dulently — as, for instance, at a meeting of an insufficient number of the corporators. There is a further drawback, which is connected with the renewal of the corporate body. In an incorporated Charity the new members are elected without that supervision which Chancery and the Charity Commission are so often called upon to exercise in the case of Trustees, whilst neither the Commission nor the Court has any power either to make new schemes for the Charity, if its constitution prove to be an impracticable one, or to divest its members of their trust if circumstances should require it. Where, for instance, it * Eeport of Schools' Inquiry CommisBion, Mr, Fearon's evidence, Q. 13,370. I 2 116 is proposed to concentrate the management of all the charities of a locality in the hands of a single body of administrators, this invaluable reform cannot be carried through if one of the Charities happens to be incorporated. But beyond all these legal objections there lies a practical one, which, vague as it may appear, has been proved by the experience of the Charity Commission to be only too real. The feeling of moral responsibility becomes less strong in a man who, even if only nominally, has merged his indi- viduality in the life of a fictitious entity, and whose acts, even if only technically, are no longer his own. If the same man be trustee of an unincorporated charity, his own name is used in every transaction, his own signature is attached to every deed, and these outward and visible symbols of his action keep alive his sense of responsibility. There is no longer any fictitious phraseology to make him stand, as it were, outside himself, and carry his doings as a corporator into an external world in whose affairs his conscience can feel no interest. This is not mere a priori speculation. " It has been found," report the Charity Commissioners, as the result of their actual experience, " that through the use of a common seal a veil is thrown round the decisions and acts of the individual trustees which tends to weaken their sense of personal responsibility, and hence to produce laxity of administration."* This weakness of legal and of moral responsibility, this defect in both the coercive and the conscientious sanction, is rendered by modem observation even more evident than at the time when it was coarsely embodied in the aphorism that " Corporations have neither a body to be kicked nor a soul to be damned." Both legislators and administrators have laid the lesson to heart. " It has been the current of modem practice in the settlement of new schemes for Charities, whether by legislative or other special authority, to substitute as far as possible individual trustees for pre- viously existing corporate bodies. This policy has been signally afiirmed by the Legislature in the Municipal Cor- * Pari. Papers, 1874, xv. 13. 117 porations Act (3 & 6 Wm. IV., c. 76), whereby the several Municipal Corporations dealt with by that Act were dis- placed throughout the kingdom from the trusteeship of the borough charities in favour of bodies of individual trustees. We may also mention the contrivance to which the Court of Chancery has found it necessary to resort, of appointing boards of managers for controlling, at least, the acts of the corporate trustees whom it is unable to remove. It is also the almost invariable practice of the Endowed School Commissioners, in framing schemes for incorporated charities, to provide for the extinction of the corporations, and the substitution of individual Trustees or Governors in their place."* We may thus conclude that every unincorporated body of Charity Trustees is, in this country, now clothed with all the advantages that incorporation could ever have given it ; whilst, on the other hand, it is free from serious drawbacks which are inherent in the working of a body-corporate. The proposal to incorporate all Charities may therefore safely be discouraged. VI. — Time of Creation. Restrictions have frequently been introduced for the purpose of securing such an interval between the creation of the gift and the death of the donor, as will afford some guarantee that the gift was not made in the immediate expectation of death. Where charitable gifts are made in a last illness, they are undoubtedly subject to peculiar objection, as well on account of the effect which the disease itself may have in impairing the faculties of the invalid, as of that which the fear of death may have in awakening selfish superstitious terrors, and leading him to prefer the claims of religion to those of justice. " One flash of purgatorial fire," as Fuller says, " is able to melt a miser into charity ."f When the * Pari. Papers, 1874, xv. 13. t Church History, vi. 1. 265. 118 legendary Scotchman asked, "Should I be placed among the elect if I left ten thousand pounds for Free Kirk Sustenta- tion ?" his minister is said to have replied that it was an experiment well worth trying. The story may be a myth, but it is also a parable. The Eighty-fourth Canon of 1604, after ordering a chest for alms to be set in every church, proceeds to provide that — " The Parson, Vicar, or Curate shall diligently, from time to time, and especially when men make their testaments, call upon, exhort, and move their neighbours to confer and give, as they may well spare, to the said chest, . . . knowing that to relieve the poor is a sacrifice which pleaseth God, and that also whatsoever is given for their comfort is given to Christ himself, and is so accepted of him that he will mercifully reward the same." Similarly the Rubric in the Order for the Visitation of the Sick in 1349, 1552, 1559, and 1604, provides that "The Minister may not forget nor omit to move the sick person (and that most earnestly) to liberality towards the poor ;" words which after the Savoy Conference were modified to their present form : — " The Minister shall not omit egjuestly to move such sick persons as are of ability to be liberal to the poor." Hence the Act of 1736 * requires all charitable gifts of land to be made at least twelve months before the donor's death. And the Church Building Act of 1803 which, dispensing with the restrictions both of that statute and of the older statutes of Mortmain, allows any one to give five acres of land, either by will or by deed, for the site of a church or parsonage, requires that the will or deed be " duly executed three calendar months at least before the death of such grantor or testator." f Similarly, but more generally, the Irish Charitable Donation and Bequest Act of 1844 ■• provides that — "No donation, devise, or bequest for pious or charitable uses in Ireland shall be valid to create or convey any estate in lands, tenements or hereditaments for such uses, unless the deed, will, or other instru- meet containing the same be duly executed three calendar months at the least before the death of the person executing the same ; and unless » Supra, p. 76. + 43 Geo. iii., c. 108, =.1. * 7 & 8 Vie. c. 97, a. 16. 119 every such deed or instrument, not being a will, shall be duly registered in the office for registering deeds in the city of Dublin within three calendar months after the execution thereof." In Scotland no special rule exists, or has ever existed, for devises to charities. But they used to fall, so long as it ■was in force, under the general Law of Deathbed, which, indeed, is said to have sprung from a jealousy of ecclesias- tical influences. This rule — which, however, was abolished in 1871 * — rendered void all gifts of landed property that were made to any one, except the heir-at-law, within sixty days of the doribr's death, if he were then ill of the disease of which he ultimately died, and had not meanwhile appearedatkirkormarket,orgivensomeproof of convalescence. It is curious that no similar precaution has yet been taken in any part of the United Kingdom for charitable bequests of personalty; where it must be more necessary ,-[• both because money is more frequently held by the ignorant classes than land is, and because the desire to keep land in a family affords of itself a very considerable safeguard. A clause for this purpose was contained in Mr. Headlam's unsuccessful "Bill to consolidate and amend the Law of Mortmain," of 1854, which proposed to enact that (except in the case of specific bequests of scientific or artistic objects), bequests of personalty to charitable uses should not be valid unless the will were executed three months before the death of the testator, and notice of it given by him to the Charity Commissioners within a month of execution (an effective provision for preventing the ante- dating of the will); while gifts by will of realty were, as now, to be almost entirely prohibited. Similarly in Pennsyl- vania, by an Act passed in 1855, bequests, devises, or con- veyances for religious or charitable uses must, whether made by deed or will, be executed at least one calendar month before the death of the testator or grantor. And in New York, by a statute enacted in 1848, all gifts hy will to charitable corporations must be made two months before the testator's death. In France a more imperfect protection * 34 & 35 Vic. u. 81. t See p. 68, iwpra. 120 against ecclesiastical influence is provided by the rule which prohibits a confessor from receiving anything under the will of his penitent. In Ontario gifts of land to religious societies, whether by deed or will, must be made six months before the donor's death.* In the State of Georgia, a gift by will to charitable uses is made void unless executed ninety days before the tes- tator's death, if he leaves a wife or issue living. This last provision seems, like the corresponding one contained in our Indian Succession Act, 1865, to confiise the question of deathbed dispositions with that of legitim ; as if it were needless to guard a testator against ecclesiastical influences except when he had very near relatives. The Indian Act provides-f- that " No man having a nephew or niece, or any nearer relative, shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons." Lord HatherleyJ proposes to require every charitable gift by either deed or will, of either realty or personalty, to be made twelve months before the giver's death, except a gift by will under the amount of £200. To all such restrictions there is of course the obvious objection that there will inevitably be cases in which they will deprive charities of many unexceptionable donations. On the one hand, a man who has made his gift in the most perfect health, may still die most unexpectedly within the subsequent statutory period. On the other hand, death may be expected, and yet not influence the gift. A testator may, and in a large proportion of cases actually does, make his will only when impelled to do it by the approach of death, and yet make it in precisely the same manner, even as to the extent of his charitable bequests, as he would have done if he had been in perfect health. * statutes, ch. 216, s. 19. t Section 105. t Transactions of Social Science Association, 1859, p. 191. 121 Where the gift is by will, the strength of this objection is heightened by the prevalence, at any rate in England, of a half unconscious superstition which too often leads men to postpone making their wills until the leist hour is evidently at hand. In strong men's minds, it is only the association of ideas, linking the notion of a will with that of imminent death. In weaker men, it undoubtedly often amounts to an actual belief that a man's making a will is an omen that he will soon die. A further objection, in the case of wills, to such restrictions is, that a man's " last will " is not necessa- rily his first one. He may have bequeathed a charitable legacy in a will made many years before his death, and then may re-make this will for collateral purposes, and reinsert the legacy. If he dies immediately after making the new will, the charity must, under Lord Hatherley's restriction, lose its legacy ; for the gift, though really of long standing, is technically a recent one. Undoubtedly there are many conditions of society in which the strength and the corruptness of sacerdotal influ- ence are such as to outweigh all objections, and render some restriction upon deathbed dispositions imperative. Thus Archbishop Whately deposed to the Mortmain Committee of 1851, that in Ireland " we should scrupulously guard against the danger, which I know is considerable," of rash gifts made in fear of death.* But we may fairly say that England is not, and for cen- turies has ceased to be, in such a state as to make these restrictions necessary or even beneficial. Our law has never imposed any check on deathbed gifts of personalty to charities; yet the cases in which any abuse that such a check would have defeated has been even suggested, have been extremely rare. Nay more, as we have seen,f death- bed gifts of land have, by a singular course of exemption, been legalised for precisely those objects which sacerdotal pressure would be most likely to favour. Yet in the seventy- six years which have since elapsed, not a single case has occurred in which any clergyman has been even suspected * Report, p. 468. + Supra, p. 68. 122 of abusing his influence by extorting from an invalid a devise of land for the benefit of his Church. Mr. Shelford, a learned writer on the Law of Mortmain, says that in all his researches he found only two cases* reported in which any gift of property had been challenged on the ground of undue spiritual influence exercised by a Protestant ; and that even these were gifts not to charity but to the clergyman's own benefit.-f- It may safely be inferred that there exists at present in this country no denomination, at any rate of Protestants, which would be willing to see its ministers enlarge its wealth by such means. And assuredly there is no denomination whose ministers are not fully aware that any wealth, which might be obtained by such means, would be dearly purchased by the public discredit that it would entail upon themselves and upon their sect. VII. — Time of Taking Effect. Much has been said as to the undesifablenessof sanctioning charitable gifts that are so made as to take efiect only after the Founder's death. The English Statute of 1736 prohibits them in the case of land; and Lord Campbell J and Mr. Justice Grove§ have expressed a wish to see the prohibition extended to personalty. The law of Mississippi prohibits them in the case of land ; and even in the case of personalty, if a religioiis body or corporation sole is made the Trustee of the personalty. || The ethical objection to such gifts we have already dis- cussed.1I But except where they are made in the near prospect of death, so as to fall within the dangers discussed in our last section, it is difiicult to see why they should be prohibited, except for the mere purpose of imposing every possible check upon Endowments. Such a prohibition is of • Norton v. SeUy (2 Eden, 286); ffuffuenin v. Saseley (14 Ves., 273). + Report of Mortmain Committee of 1851, Evidence Q. 264 — 7. X Life ofBardwicke. § Journal of the Society of Arts, xvii. 691. II Revised Code of 1857, sees. 55 and 56. IT Supra, pp. 22, 24. 123 course a serious check, for, as the supporters of the Act of Geo. II. foresaw, actual personal wants, and even mere feel- ings of self-interest, are strong enough to preclude many men from giving away in their lifetime what they would be anxious to give to charity at their death. They will be generous at the expense of their descendants, but not at their own. But where the law of a country has rendered Endow- ments in general innocuous — by providing both for their efficient administration so as to counteract the ' principle of caducity,' and for their future revision so as to adapt them to the changes of circumstance — and where the particular Endowment proposed is in itself beneficial, it is surely need- less to throw factitious legal hindrances in the way of its creation. There are many persons who are wise enough to plan or to select a charity with discretion, and rich enough to devote to it the reversion of a considerable sum — if only they may retain, or have adequate security for receiving, the income of that sum during their lives — who, neverthe- less, cannot aiFord to part immediately and irrevocably with the whole, and sacrifice both principal and interest. The last Report of a valuable charitable society says, " Last year your committee mentioned that Mr. T. S. had presented a sum of £2000 to the Institute, on the condition that certain interest be paid to Mr. or Mrs. S. during their joint lives, or to the survivors of them, and that then the whole amount revert absolutely to the Institute. This amount has since been paid. Your committee will be happy at any time to meet the views of any such of their friends, and to make similar arrangements to those entered into with Mr. S." It is hard to see upon what ground such arrangements, if in other respects unobjectionable, need be legally prohibited. Why may not a man give to a Charity a post-obit bond on his own life ? This point, as well as that of revocability, is involved in the question whether charitable gifts should be allowed to be created by will. The Act of Geo. II. has, as we have seen, prohibited such devises in the case of realty ; a prohi- 124 bition which Lord St. Leonards vainly attempted to get extended to Ireland, and which accordingly holds neither there nor in Scotland, whilst even in England it does not extend to bequests of pure personalty. Mr. Justice Grove,* who would prohibit all charitable gifts that do not take effect in the donor's lifetime, lays stress upon the value of the donor's watchfulness in preventing them from being abused. It is true that he will no doubt feel a specially strong interest in the working of his own Foundation ; and that if it has been incorporated, he will as its visitor have-|- special means of correcting any abuses. But no such importance should be attached to this, as to justify any special legal preference for such charities ; since Foundations are usually managed with purity and efficiency during the first generation of their history, and thus the donor's vigilance is present only at the time when it is least needed. VIII. — The Fobmalities. An obvious precaution for any gifts that are likely to be challenged is to require that their execution shall not take place in secret, but that the donor shall secure the attend- ance of some witness who will be able, if subsequently called upon to do so, to give evidence of the genuineness of the signature, the circumstances of the gift, and the mental con- dition of the giver. Thus the English law requires two witnesses to attest every will, whether it contain charitable gifts or not ; and the Act of 1736 requires every deed by which land is given to a charity to be attested by two witnesses, whilst an ordinary deed of conveyance does not require any witness though in practice it always has at least one. There can be no doubt of the propriety of requiring witnesses to all instruments by which property is disposed of ; and especially to those which dispose of it to charitable uses, and are therefore peculiarly apt to cause disappoint- * Vbi supra. t PhUipi v. Bury (Skinn., 447). 125 ment and arouse hostility. The only points that call for discussion are, the number and the character of the witnesses that should be required. As regards number, it is undesirable to require charitable gifts in general to be attested by more witnesses than are required for ordinary gifts; except where (as in the English law of conveyances inter vivos) the rule for those gifts is unduly lax. But it deserves consideration whether an addi- tional number of witnesses might not, with propriety, be required, whenever the magnitude of the gift is such as to call for special proof 6f the circumstance under which it was made. Thus Lord John Manners' Bill of 1845, " to alter and amend the laws relating to the disposition of property for pious and charitable purposes " * (whilst repealing the Act of 1736, so as to permit land to be given to Charities by will), proposed to provide that where any charitable gift, whether made by will or inter vivos, exceeded one-half of the whole real and personal property of the donor, the instrument should only take effect to the extent of that half, unless it were " Executed in the presence of three credible witnesses (one of them being a medical attendant of such testator, donor, or grantor), who shall then certify on the back of every such will, deed, or other instrument or conveyance, that such testator, donor, or grantor is, according to the best of their judgment and belief, of a sound disposing mind, and fully acquainted with the contents of such will, deed, or other instrument of conveyance, and that he has executed the same freely and deliberately, without any undue solicitation or influence made to or practised upon him in that behalf." As regards the character of the witnesses, it has often been suggested that the law should require at least one of them to be a person of such professional or official position that his presence will be a check upon the purity of the gift, and his evidence as to the donor's condition and conduct will be unexceptionable. Thus Lord Hatherley suggests that every instrument by which real or personal property is given to charity should be attested, if a deed, by an officer of the Charity Commis- * Pari. Papers, 1845, iv. 213. 126 sioners, and if a will (unless the charitable .bequest be under £200) by a solicitor* Such a witness would probably add to the instrument some special form of attestation such as is employed, for instance, in warrants of attorney, to show tha.t he had fully explained to the donor the effect of the gift. Little objection, beyond that of trouble and expense, can be raised to the suggestion that all deeds of charitable gift should be executed before an official witness ; for they are almost certain to be drawn up by a professional man who will be aware that this formality is required, there will be time to secure such, a witness, and if the deed is to take immediate effect there can be no fair objection to publicity. (It may, however, be suggested that a Justice of the Peace or a County Court Judge would be a more accessible and a not less competent witness than one of the Charity Commis- sioners' staff.) But in the case of a will, there are objections to requiring an official witness. If the testator (as often happens) draws up his own will, there is great risk of his not knowing that any special witness is required. . If the will, by whomsoever drawn up, is made (as often happens) in the testator's last illness, there may not be time to obtain an official witness. If (as almost always happens) the testator desires to keep secret the effect of his will, that he may be able both to make, and if need be, to alter it, without exciting reproach, he will be reluctant to resort to an official whose presence renders public at least the fact that he has given some of his property away from his family. It is part of the every- day experience of legal practitioners for a man to employ a distant solicitor to make his will, lest even the fact of its being made should become known in his own neighbour- hood. It was probably by some such reasons as these that Lord Hatherley was led to suggest for wills only the presence of a solicitor, a merely professional witness instead of an official one. But it may be doubted if anything would be gained * TransactioDs of Social Science AEsociatiob, 18S8, p. 191. 127 by requiring a solicitor. On the one hand, perfectly unex- ceptionable gifts would often fail, because'the testator made his own will and did not know that any professional witness was needed. On the other hand, when gifts were extorted by any undue influence, the person exercising it would have little difficulty in also extorting the employment of some legal friend of his own as the required witness. The present condition of English society, as we have already sai'd, is not such as to call for any of these precau- tions so urgently as to make them worth the trouble and expense they necessarily involve. Their practical value may easily be overrated. In another instance where undue influence is to be apprehended, the English law has taken the precaution of requiring official witnesses — in the case, that is, of conveyances of land by married women. No one who has seen the two Commissioners examine a wife " apart from her husband, touching her knowledge of the deed, to ascertain whether she freely and voluntarily consents thereto," is likely to have regarded the ceremony as con- stituting any real safeguard. Yet it adds four or five pounds to the expense of the conveyance ; and the employ- ment of official witnesses for charitable gifts would neces- sarily involve some similar tax upon them. IX. — Subsequent Publicity. There can be no doubt of the advantage of securing the utmost publicity to all the details of the constittition as well as of the working of every Foundation. It is of import- ance to all persons whose circumstances qualify them to seek the benefits of the Charity. It is of importance to the State, as facilitating the supervision of Charities, and enabling it periodically to estimate their wealth, and con- sequently judge of the need for stimulating or restraining their midtiplication. It is even of importance to the admin- istrators of the Charity, as helping to preserve information which their own archives are often too carelessly kept to preserve. 128 The provisions necessary for this purpose are of two kinds : — ^those which by extensive but temporary publicity arouse local interest, and prevent the original trustees from silently appropriating the fund before its working has com- menced ; and those which by a permanent though limited publicity, secure means for checking any abuses which in time may creep into its working. In other words there must be provision for Advertisement and provision for Registration. For the former purpose, very eflfective provision has been made in Ireland. As far back as, 1763, it was enacted by 3 Geo. III., c. 18, that every charitable gift made by Will should be published by the executor in the Dublin Gazette. For it was found, recites the statute, that " the pious inten- tions of many charitable persons are frequently defeated by the concealment or misapplication of their donations or bequests to public or private Charities in this kingdom " — a recital which one of the Secretaries to the Irish Commission pronounced to be " as true in 1861 as it was in 1763."* In the following year, 1764, the Irish House of Lords appointed a Permanent Committee on Charities, which discovered " several charitable bequests and donations, to a large amount, which had been withheld, embezzled, and concealed." Its records are still preserved in Dublin Castle, and must well deserve publication. When the Union destroyed the Irish Houses of Parliament, this Committee was replaced -f by a standing Board of "Commissioners for Charitable Donations and Bequests," with power to discover charities, and enforce or revise their application. It consisted entirely of dignified officials, all of them necessarily Pro- testants, and most of them ecclesiastics — the Archbishops and Bishops, the Lord Chancellor and the Judges, the Pro- vost of Trinity, the Dean of St. Patrick's, the Vicar General of Dublin, and the whole of the Dublin parochial clergy ! Five were to be a quorum, but a Bishop or Archbishop must be present at every meeting. Such a Board was little * Transactions of Social Science Association, 1861; p 148. t 40 Geo. III., c. 75. 129 calculated to command the confidence of a Catholic nation ; and the extensive power which was given to it '-^ of altering the expressed intentions of Founders, inspired the keenest distrust. The Commissioners, however, worked hard. In the first thirty years of their existence they secured the due application of about £300,000 worth of charitable gifts, besides another £100,000 worth about which they were still fighting.-|- Their existence came to an end in 1844, when Sir Robert Peel's Ministry reconstituted them under the same name, but with a new organisation, which required at least five of the thirteen Commissioners to be Catholics, and at least five to be Protestants, and which took away their power of Revision.^ Their only power was to recover gifts that were " withheld, concealed, or misapplied," and then to hand them over to the Trustees. They had no power to originate inquiries, or to ask for annual returns or even for suspected accoimts, or to send out Inspectors, or even to administer the moneys they received. It was not until 1867 that they were placed more nearly upon a level with Lord Oranworth's English Board. At the present day, under the Charitable Donations and Bequests Act of 1867,§ the executors of any will contain- ing any charitable devise or bequest must, within three months after obtaining administration, publish once in the Dublin Gazette, and three times in some local paper, every charit- able devise or bequest contained iu the will (at the cost of the property so left to charitable purposes) under a penalty not exceeding £20 to be recovered summarily by the Commissioners in the Civil Bill Court. Moreover, copies of the papers containing such publication must be sent to the office of the Commissioners, under a penalty of £5. Any person, however, may be exempted from these penalties where the devise or bequest is of trifling value. A large sum in the aggregate has been remitted under this exemp- tion by the Commissioners on receiving receipts from the Charities for the executors' payment of the sum bequeathed; * /n/ra,p. 200. t Pari. Papers, 1829, iv., 19a. J 7 & 8 Vic, c. 97. § 30 and 31 Vic. c. 5i, 8. 19 (superseding 7 and 8 Vic. c. 97, s. 18). K 130 737 gifts having been exempted, and 2923 advertised. The Registrars of the Court of Probate must, under a like penalty, give notice to the Commissioners of every charit- able donation contained in any will entered at their office,* so that an executor has little chance of omitting the advertisement Avithout detection. Provision has also been made for the registration of charitable gifts in Ireland by the Charitable Donation and Bequests Act of IS-i*, which requires all gifts of realty to Charities by instruments inter vivos, to be registered in Dublin within three months after their execution.-|- In England, on the other hand, it is for Registration alone that provision has been made. The Act of 1736 ensured publicity as to all future gifts of lands to charities, by requiring them to be enrolled in Chancery. The value of this precaution has, however, been almost destroyed by the defective mode of enrolment which has been adopted. Mr. Edwin Field, a solicitor, whose experience and judgment give the utmost weight to his testimony, says, " The enrol- ment is so conducted that you cannot refer to it. It is scarcely possible to find out the trustees of any endowment that is enrolled ; you could not find it out after a few years unless you knew the name of the vendor or of the first trustee. The index does not tell you in any way the purpose of the charity, or the buyer, or the place, or the parish in which it is. With regard to any particular charity if you wanted to know whether the deed was enrolled as to it, or anything" else respecting it, you would probably find it was utterly impossible to ascertain it from any search that you could make at the Enrolment Office. The statute therefore ensures no publicity."! Another solicitor, Mr. T. P. Bunting, gives it as the result of his experience that, "If you know somewhere about the date of the deed, the names of some of the granting parties, and the locality, (which of course you can always get at), then after long search you are able to get it. I have instituted searches * 30 and 31 Vic. c. 54, s. 20. + 7 and 8 Vic. c. 9/, s. 16. i Keport of Mortmain Committee of ISii, Evidence, Q. 398 131 myself within the last three or four months, which have been attended with great expense and very great difficulty. In one case I think it took four or five days before we could get at it; but that was a case where information was studiously withheld. In fact, in suits relating to charitable property, vast expense is often incurred in simply getting materials for your bill, by obtaining information which ought to be patent to all the world."* Much of the value of the enrolment is also destroyed by a plan which is often adopted of effecting conveyances to charity by means of" a pair of deeds, one of which conveys the property, whilst the other declares the charitable trusts. Lord Cranworth's Actf permits the enrolment of the latter deed to suffice. Two further but more limited provisions for registration ' have been made. The title deed of every school that is built, enlarged, or repaired by Parliamentary grant, is regis- tered at the office of the Privy Council, and the Charity Commissioners are authorised to register, or even to accept the custody of, any muniments of title which the trustees of a Charity may tender to them for that purpose. + It is much to be desired that these enactments should be superseded by a comprehensive rule, so as to include gifts of personalty, and that, as recommended by the Popular Education Commission,§ all "instruments of Foundation and other instruments regulating charities, should be regis- tered in the office of the Privy Council," or, still more conveniently, in that of the Charity Coromissioners.il There is no reason why publicity should, as now, be compulsory in the case of realty only. It may be asked whether registration should be required to be made within a certain period from the execution of a gift (even though its operation be postponed or even con- tingent), or only when a gift has taken actual effect. To register revocable gifts is of little value to the public, and * Report of Mortmain Committee of 1851, Evidence, Q. 670, 687. t 24 Vic. c. 9, s. 2. t Infra, Part VI. § Report I., 548. II Infra, V- 1^0- K 2 132 probably would be distasteful to the donor, though it may ultimately be of convenience to him in facilitating any steps he may take for revocation. Mr. Headlam's Mortmain Bill of 1854 proposed, however, to require immediate regis- tration — though not immediate publicity — ^for all charitable gifts, even though made by will, and therefore freely revocable : — " It shall be lawful for any person to bequeath any description of Personal Estate to any Charitable Purpose, subject to the following condition : — That the will shall be duly executed and attested three months before the death of the Testator, and that within one month after the date of Execution thereof a notice signed by the Testator of the amount so given, and the nature of the Trust to which it is given, shall be delivered to the Charity Commis- sioners. Provided always, that if the will be executed by any Person not at the time within Great Britain and Ireland, it shall be sufficient if the notice above required be sent by the Post to the said Charity Com- missioners within the period of one month from the date of the Execution of the Will." 133 PART IV. THE SUPERVISION OF CHARITABLE ENDOWMENTS. " The rest, some farm the poor-box, some the pews." — Pope. " I grew rich by taking charge of the poor.'' —Ze Sage. " There seems," says Mr. Hare, " to be a general concur- rence of nearly all who have considered the subject, that whatever the value or utility of endowments at the time of their creation, the watchful eye of some independent authority is always necessary to prevent their mischief and abuse. We are taught by the universal history of endow- ments that their administration has never corresponded with the original design."* By a strange but familiar tendency of human nature, the Trustee comes to regard his trust as his property, and the beneficiary comes to regard his alms as his right. The Foundation gathers abuses " as a seaweed gathers damp. The carelessness of to-day becomes the habit of to-morrow. Ill-timed parsimony creates a nuisance ; ill-judged liberality degenerates into a job."-|- It is only to be expected that governors and trustees discharging a gratuitous office of guardianship to wards who will never come of age and call them to account, are apt both to neglect to acquaint themselves with all the details of their duties, and to discharge but laxly the duties of which they are aware. Where on the other hand, the recipients of the Foundation's benefits are at the same time its administrators (as where the masters of a school, or the almsmen of a hospital, are formed into a self-governing corporation), though there is greater incitement to economy, there is perilous temptation to dishonesty. It is, therefore, desirable that over both species of * Transactions of Social Science Aasociation, 1869, p. 133. t Quarterly Seinew, XCVII., 420. 134 Foundations the State should exercise a sedulous supervision to prevent mismanagement either by negligence or by corruption; and thus, by a never-ending war against an ever- recovering foe, should counteract the inevitable " Principle of Caducity." This supervision must be of two kinds : Periodical, to afford the means of detecting abuses; Occasional, to remedy any abuses which are detected. The periodical investigation of charity affairs by a central authority is requisite to stimulate the activity of the administrators and the economy of their administration. For the former purpose, the State must periodically inquire if the number of the administrators is being kept up by new elections to its normal standard, and with what regularity each of them attends the meetings of the body. For the latter, it must periodically inquire into the receipts and the expenditure of the Charity. The returns of actual revenue must, of course, be checked by comparison with the amount of the revenue-producing capital. Of that amount the State must furnish itself with exact information by requiring the immediate registration of every charitable gift.* In old coimtries, where philanthropy has run a long course before the national life has reached the stage of centralisation at which such a Register becomes possible, its contents (like the English enrolments under the Act of 1736) will cover only the later Foundations. In such a case it must be supplemented by a general inquiry into the present wealth of the earlier ones. The history of English law reform contains few examples of more persistent and unselfish zeal than the twenty years struggle of Lord Brougham to carry out such an inquiry in this country. He brought the question before the House of Commons ; he aroused the public mind by a " Letter to Sir Samuel Romilly" (in 1818) on the abuse of charities, which ran through twelve editions in six months; and byalong series of Parliamentary efforts he obtained the appointment of four successive Commissions of Inquiry, which, in the emphatic words of Earl Russell, " destroyed many flagrant abuses, * Svpra, p. 127. 135 detected the perversion of a large amount of charitable funds, and led the way to those further inquiries and those remedial measiu-es of which we have seen the commence- ment and the progress, but of which the consummation is yet to come."* His Commissions were at work from 1818 to 1837, and the result of their investigations — the longest in duration and the most prolific in facts of all Parliamentary inquiries — is embodied in thirty-eight folio volumes, con- sisting of some twenty-five thousand pages, describing twenty-eight thousand eight hundred and eighty Charities (with an aggregate* income of twelve hundred thousand pounds), and compiled at a cost of more than a quarter of a million. During the forty years that have since elapsed, these Reports have been used as the basis of all official dealings with the endowed Charities ; and they have stood the test. During the last few months the present Charity Commissioners have pronounced them "a record of laborious and accurate investigation which has seldom, if ever, been equalled in the discharge of similar functions, and of which our daily experience enables us to speak with confidence."-|- But though the first efiectual. Lord Brougham's was not actually the first, attempt to institute such an inquiry. By Mr. Gilbert's Act of 1786, j returns of charitable donations, " for the benefit of poor persons," held by unincorporated trustees, had been made on oath by the parochial clergy churchwardens, and overseers. They received no authority to make inquiry from the Charity Trustees, but were simply to report their own knowledge. The retiirns were almost universally made, only fourteen parishes out of thirteen thousand having sent in no return ; and the returns are now found to embrace almost all the returnable Charities. But a remarkable proof of the ignorance which prevails even about local charitable funds, is afforded by the fact that the returns enormously undervalued the wealth of the Charities they enumerated. In Berkshire, for example, their estimate was only one-third of the actual revenue.§ * Beeolkaions, p. 170. t Eeport of 1879. J 26 Geo. Ill, c. 58. § Edinburgh Smew, XXXII. 102. 13G The aggregate income they returned for England and Wales was — From land £210,467 8 10 From personalty 48,243 10 5 £258,710 19 3 The discrepancy between this amount and the £1,209,395 discovered by Lord Brougham's Commissioners (even after allowing for the wider scope of the inquiries of the latter), is sufficiently remarkable, and affords strong proof of the necessity of providing for the official registration of all charitable funds, and not leaving the public knowledge of their extent to the hazards of local tradition. A Committee of the House of Commons sat upon the Gilbert Retiu-ns, and discovered in them ample evidence of the need for supervision. They report that " Many of the said charitable donations appear to have been lost ; and many others of them, from neglect of payment and the inattention of those persons who ought to superintend them, are in danger of being lost, or rendered very difficult of being recovered."* It was not vmtil 1812 that Parliament applied a remedy. In that year Mr. Lockhart succeeded (in spite of the opposition of the City Companies) in passing an Act-j- which required particulars of the income, capital, objects, and trustees of every existing endowed Charity, and the names of the persons holding the Instrument of endowment, to be registered with the Clerk of the Peace for the county within six months from the passing of the Act ; and made a similar provision for all future Charities. A copy of each registration was also to be enrolled in Chancery. But this remarkable statute failed for want of a sanction. It pro- vided no penalty for non-registration, and it gave no one any authority to enforce registration. Hence, two years after the time for registration had expired, the Home Secretary reported that in many counties not a single Charity had been registered, and in no county had many been. In Middlesex there had been only thirty registrations ; * Pari. Papers, 1816, iv. 329. f 52 Geo. Ill,, c. 102. 137 in Cheshire, four ; in Nottinghamshire, three ; in the North Riding, one. All this time the Gilbert Returns were lying in manuscript in the archives of Parliament, and were not rendered accessible to the public until Brougham, in 1816, moved for a Committee, which printed them along with the results of its own inquiries. It found that "Charitable funds have in many cases been grossly misapplied ; often, no doubt, from ignorance In many parts of the country, schools richly endowed have fallen into disuse." All these efforts culminated, in 1876, in the completion, by the present Charity Commissioners, after fifteen years of compilation, of their General Digest of Endowed Charities — a true Domesday Book of Foundations, replete with priceless material for the historian, the jurist, and the politician. From this Digest,* which appeared in parts from 18G7 to 1876, it appears that of the 14,859 civil parishes in England and Wales {i.e., districts itpon which separate poor rates are levied), no fewer than 11,859, or 7982 per cent., possess charitable endowments. The accessibility of chari- table assistance is made still more vivid by the test of population than by that of area ; for though there are thus 2018 per cent, of our parishes which are still destitute of Foundations, they are parishes so thinly inhabited as to contain only 4-96 of our popidation. The gross income of these endowments (not allowing for taxes, rates, and repairs) is — From land i'1,558,251 From personalty 640,213 £2,198,464t Of the personalty held by Charities, seven-eighths consists of Government stock. The lands held by them extend to 524,311 acres. (The preponderance of real over personal property in the endowments is largely due to the fact that, until -within the last two hundred years, land and houses * Pari. Papers, 1877, xxvi. 16, and l.tvi. 17. The statistics given in 1875 (xx. 16) are superseded by these. t It would seem from the subsequent figures that the amount is £3 less than this. 138 were the only permanent forms of property; the only forms, therefore, that a Founder would care to give. The absence of accessible investments, such as the Stock Exchange now affords, is vividly illustrated by some of the old directions about the surplus income of Foundations. In one public school it was to be placed in an iron coifer. In another (Shrewsbury) it was to be placed in an iron box under four locks, and to be taken out from time to time to be spent in building houses, and the like. At Burford, two cottages were conveyed in 1546, upon Trust " to take the rents and (after repairing the cottages) to put the residue into a common box, to be reserved until any payments of fifteenths should be levied.") The localities of the Charities are classified as follows : — Loudon and 'Westminster .£228,764 Other localities 1,314,914 Irrespective of locality 654,783 £2,198,461 (But in this classification all Charities administered by the City Companies are treated as situate in London, without reference to the locality where the income is spent.) These incomes are devoted to the various forms of charity in the following proportions : — Education £666,863 Apprenticing and advancement 87,865 Clergy and lecturers 90,843 Church purposes 112,895 Nonconformist Churches and Ministera 38,832 Parochial and other public uses Almshouses and Pensions Medical Hospitals and Dispensaries Distribution amongst the poor 66,875 552,119 199,140 383,029 £2,198,461 Yet even these vast returns are not exhaustive. (I.) They include no estimate of the prospective increment in the lands let by the Charities upon building and other leases ; nor of the value of the lands kept ' in hand ' for occupation as Charity premises. The importance of even the latter omission is illustrated by the Commissioners' 139 statement* that '' £280,000 was, a few years back, paid by a railway company for property in hand belonging to St. Thomas's Hospital ; £90,000 by Merchant Taylors' Company for only a portion of the property in hand belonging to the Charterhouse ; and a short time ago the value of the land and buildings which were occupied for the purposes of a single charitable foundation in the City of London were estimated at a sum exceeding £500,000." (II.) They are only co-extensive with the jurisdiction of the Commissioners, and therefore do not include — 1. The Universities and their Colleges. 2. Eton and Winchester. 3. Cathedral Foundations. 4. Friendly Societies and Benefit Societies. 5. Institutions wholly maintained by voluntary con- tributions. (III.) Besides the new Charities which every year brings into existence, it is probable that even when the Digest was made it failed to include all that legally fell within its scope. The Commissioners state that, " The frequent recur- rence of cases in which the existence of Charities of long standing has only recently, and often accidentally, become known to the Commissioners, leads them to believe that a considerable number of these charities may have hitherto escaped their notice." Two remarkable instances of such discoveries, abundantly showing the imperfectness of our official information about Charities, are cited by Sir Arthur Hobhouse, who mentions that in 1868 the Commissioners learned for the first time the existence of two old Founda- tions of considerable importance, one possessing an endow- ment of £1000 a year, and the other of £100,000 capital.-|- Of the 8390 Charities, previously unrecorded, which have been registered by the Commissioners since they took office — ^an average of more than three hundred a year — only 4805 seem to have been created since the completion of the Reports of Lord Brougham's Commissioners, so that nearly * ParL Papers, 1877, Ixvi. p. 23. f Characteristies of Charitable Foundations, p. 26. 140 half of them are old ones which had escaped notice in all former inquiries. The present Commissioners have reported that "the means at our disposal for ascertaining the particulars of newly-created Charities, are limited and uncertain. Advan- tage might result from imposing on all the persons charged with the execution of the trusts of new charitable Founda- tions, the duty of reporting them to our Board, and also from transferring to our office the enrolment of charitable settlements of land, which are now registered in the offices of the Court of Chancery."* Comparing the statistics of the 1861-76 Digest with those of the 1818-1837 Eeports, the Commissioners find that the increase in the personalty held by Charities is £12,947,200, whilst the area of Charity lands has increased thus : — Acres. isei-re 524,311 1818-.3V 442,915 81,396 There is an increase in the gross income of Charities of no less than £999,231, which is thus divided : — Charities reported by 1837 ... . Old M»i-reported Charities ... . Charities since founded : ■ ^524,039 248,240 1338 by Deed 3467 by Will 111,033 115,919 i:999,231 Hence more than 52 per cent, of the increase of income belongs to Foundations which were recorded by Lord Brougham's Commissioners, and must chiefly arise from improvements in the value of their property, whilst about 25 per cent, belongs to Foundations which should have been reported to them but were not, and nearly 23 per cent, is the creation of more recent Founders. This 23 per cent, constitutes more than one eleventh of the whole charity income of the country, as reported in the Digest ; a note- * Pari. Papers, 1859, xii., p. 3. 141 worthy proof that the introduction of an active system of supervision and revision has served to stimulate, instead of I'epressing, the zeal of Founders. This becomes still more manifest if we consider that a large portion of the other ten-elevenths of income consists of unearned increment which has accrued since the foundation of the older Charities, and consequently that the actual sums originally given by the Founders before 1837 cannot really have been even tenfold as great as those given since 1837. The General Digest of 1876 thus showed a total income of about £2,200,000' Inasmuch, however, as more than fifteen years have elapsed since the inquiries were completed upon which the earlier portions of the Digest are based, during which interval many new Charities have been created, and as the income of many largely endowed Chari- ties is continually on the increase, the Commissioners, in a letter to the Lords of the Treasury,* dated May 16th, 1879, estimated that " the present amount of the income of the Charities may be taken to be little short of two and a-half millions." The contents of such a Digest of Charity property afford of course abundant data for checking from year to year the accounts which the Charities may give of the income which they have actually collected and administered. It is of the utmost importance that the State should insist upon the regular publication of such accounts, and the submission of the annual balance-sheets of all endowed Charities to some central authority. Publicity is a cjieap and efficient substitute for official investigation, as gas-lamps do more than a policeman for the nocturnal protection of a street. Vivre en plein jour is a rule of political as well as of physical health. The anticipation of having their accounts examined renders the administrators accurate and econo- mical. The accounts themselves disclose much information which is of great value to those who reside in the neigli- bourhood and are interested, whether on personal or public grounds, in the working of the Chanty, and which other- <* Pai-1. Papers, 1879, No. 272, p. ^-. 81, 3. 30. Sup-a, p. 195. § 32 & 33 Vic. c. 56, ss. 9, 10. || Cited in Hansard ccxxi. 1131. 1 7 & 8 Vic. c. 45. ** Report I. 636. 216 revision during the twenty-one being, however, permissible if the unanimous consent of all the Trustees were obtained* This limit was recommended by Lord Hatherley in his evidence before the Public Schools Commission, for the sake of preserving uniformity with the rule which restricts pri- vate settlements. The principle of all these plans is of course the same — that the Founder's directions shall cease to be irrevocable as soon as the period has expired during which there was a reasonable chance that he, if a reasonable man, would have been able to foresee their effects. That period it is of course impossible, under ordinary conditions, to ascei'tain with precise accuracy, even in an individual case ; and any period that the law may fix will be at best a mere approximation. In some instances, of course, the occurrence of an unexpected physical or political revolution may so alter the surroundings of an endowment that its effects thenceforward become such as no Founder can reasonably be supposed to have anticipated. In such a case the problem is simplified, and it ceases to be necessary to gauge the recentness of the Foundation. The Toleration Act was a revolution of this kind, so far as regards all directions for religious education in ordinary endowed schools ; and was treated as such in the Endowed Schools Amendment Act of 1873. The University Tests Act was a revolution of this kind, so far as regards all Nonconformist colleges. But in the great majority of cases no such sudden ruptiu:e interposes any natural boundary line. In the attempt to supply an artificial one, the chief point of principle for consideration is, whether it shall be simply numerical, or shall introduce the variable element of the Founder's life. The latter proposal has considerable value as an inducement to Foimders not to make merely posthumous gifts, but to establish their Foundations whilst they are still alive. The eye of a living Founder is a better security for effective administrationthan anyofficialBoardcanprovide. Theadvan- * Report I. 518. 217 tage of his personal supervision is so great that it may well justify the addition of the whole residue of the Founder's life — which probably would seldom exceed twenty years from the date of the Foundation — to whatever numerical Term of Inviolability is conceded to posthumous endowments; especially as experience seems to show that the capricious or injurious Foundations — those which would soonest need the exercise of the power of revision — are usually created by Will. But if this inducement (which of course might, in some rare cases, enlarge the term by fifty years) were considered an excessive bribe, two alternative Terms, as in the Copyright Act, might be given, and endowments be declared unalterable — except, of course, by the Founder's own assent — ^for (say) fifty years from their establishment, or for the Founder's life and (say) forty years from his death, when- ever this latter period should exceed fifty years. It does not seem desirable to make the Term of Inviola- bility depend upon so variable an element as a human life in any case, except that of the Founder's own life. . If the plan were adopted, even in the case most nearly akin to this, that of the lives of the Trustees originally chosen by the Founder, it would have the disadvantage of inducing the Founder to select as Trustees younger and therefore more inexperienced men. The lives of the original recipients of the charity will scarcely be suggested as a basis ; for though they have a direct interest as to the time at which any scheme of Revision takes effect (and their vested rights must of course be fully respected in any such scheme), they have no claim to be considered in determining the time at which such a scheme may be framed. So. far as the extent of the purely numerical period is concerned, no general considerations of principle will suffice to determine it ; and each State, will probably be guided by mere love of symmetry to take some number which has already become familiar in its law of Prescription. Con- siderations of principle, varying with the different conditions of different nations, may, however, become important in deciding whether the numerical period is to be the same for ,218 all charitable Trusts. It is clear that some of the common details in Foundations, like preferences of locality, or restrictions as to dress or diet, tend more rapidly than others to grow obsolete. It is also clear that even amongst Foundations unfettered by detailed directions, there are wide diiferences of vitality. A school is likely to be valued and valuable much longer than an almshouse ; and an alms- house much longer than an endowment for providing marriage portions. Lord Cranworth's Bill of 1853, in its original form, would have conferred upon the Charity Commissioners a remark- able power of revision, imder which charities deemed by them injurious or obsolete, would have obtained no Term of Inviolability, while a term of sixty years . would have been conceded to charities that were merely nugatory. Schemes might be made : — " For the application of any charitable funds to such charitable purposes, and in such manner for the promotion of charitable purposes, as the Board may think fit (although such purposes or such manner of application be not authorised or be not in aU respects authorised by the term, of the trusts aifecting such charitable funds) in the several cases hereinafter mentioned ; viz. (that is to say) : Where it appears to the said Board that the charitable purpose for which the fund has been given by the founder has failed : Where the said Board are satisfied that the fund as administered according to the charitable trust affecting the same creates or increases pauperism or immorality : Where in the opinion of the said Board the fund of any charity administered separately is insufficient for the purposes for which it was given by the founder, but may under a scheme approved as aforesaid, be effectively employed in union with or in aid of any other charity whether supported by endowment or by voluntary subscriptions, or partly by endowment and partly by voluntary subscriptions, or in extending the benefits of any such other charity : Where in the case of any charity founded more than sixty years before the approval of the scheme in relation thereto, the said Board are satisfied that the charity has no beneficial results, or that the benefits are insignificant, having regard to the income thereof, and that the income of such charity may, under a scheme so approved as aforesaid be beneficially applied to other charitable purposes in the district or districts where it is administered." Every such scheme, if approved by the majority of the governing body of the charity, was to be laid before 219 Parliament, and after three months was to take effect unless in the meanwhile either House had voted a resolution against it. If the scheme had not been thus approved by the governing body, it might be laid before Parliament, but could only take effect by passing through all the stages of an ordinary Act. The Bill, in a modified shape, was adopted, and constitutes the great Charitable Trusts Act of 1853 — the consummation of Lord Brougham's forty years' struggle to secure the public Supervision of public endowments. But this clause facilitating their Revision was cut down; and every scheme, whether approved or not by the governing body, was required to pass as an ordinary Bill.* We shall see how completely ineffective the power, thus reduced, has been found. The restoration of its original form has been urged by the Charity Commission.-f But in any such restoration it may be doubted whether the dissent of the administrators should be made to affect the validity of a scheme of revision, except during the first generation of them. Subsequent Trustees know no more than the Revising Authority does of the wishes or beliefs of the Founder, and know much less of charitable economy. A recalcitrant set of Trustees would indeed work the revised foundation in an unsatisfac- tory manner ; but this is father a reason for changing the Trustees than for refusing to change the Foundation. It is of course possible — and if the Founder devised his original plan with prudence it will be highly probable — that even when the Term of Inviolability is over, the Revising Authority will find no part of the Foundation grown obsolete and will have no change to make. But if the ruins of time should be already apparent, what course must be pursued ? Some persons will perhaps contend that if the Foundation cannot be sufiered to continue as it is, the only honest course will be to declare the public ownership to be at an end, and to restore the endowment to the Founder's heirs. " If," they * 16 and 17 Vic. c. 137, ss. 54-60. /ft/ra, p. 225, + Pari. Papers, 1867, p. i. 220 may say, " you choose to set aside his will, the logical consequence is that you must treat him as intestate. You have no right to make a new will for him, and to compel him to be charitable in your way instead of his own." "To set the giver's dispositions aside, except at the command of a still higher principle, is an offence both against Liberty and against Property," says Mr. J. S. Mill.* The practical reply of course is, that the very existence of the Foundation shows that in the Founder's own opinion his heirs stood in no very pressing need of his property; that a scheme expressly devised by a Board of experts has every chance of rendering the property eminently beneficial to the public ; whilst, if the property were instead to revert to the heirs, it is highly doubtful if it would be of any benefit to them. The sudden and fortuitous accession to a family, of property which for thirty, forty, or fifty years past none of their members have had any reasonable expec- tation of obtaining, seldom results in their permanent advantage. Wealth is but little of a blessing except where its acquisition has been preceded either by the energy to win it or by the education to wield it. No more cruel kind- ness could be conferred upon a family than to dangle before their eyes, for a whole generation or more, the vague chance of a reversion, a fortune which most probably would never fall in, and which, if it fell in, would do so independently of their deserts, and would probably be utterly dispropor- tioned to their needs, their rank, and their education. A Founder's kinsfolk will frequently be his social inferiors. It must always be remembered that most of our endow- ments are created from the newly won wealth of the trading classes. " Soon come, soon gone,'' is a financial proverb which is exemplified in hospitals and asylums, as well as in the cellar, the stable, and the greenroom.-f- * Fortnightly Review, xi. 380. t " When," says Lord Brougham, "we inquire from whence proceeded these magnificent endowments, we generally find that it is not from the bounty of those who, possessing princely revenues, were anxious to devote a portion of them for the benefit of mankind — ^nor from those who, having amassed vast fortunes by public employment, were desirous to repay in charity a Uttle of 221 Moreover if the first generation of Trustees, the Founder's own friends, saw this reversion hanging over the property, their respect for the contingent interests of the reversioner would often undesirably fetter their action in the adminis- tration of the charity property. We may assume, then, that the property thus diverted from the particular public uses which the Founder designed is still to remain public. But is any further restriction to be imposed ? Some writers would be content to leave the property at the uncontrolled discretion of the Revising Authority, not indeed to sink as public money into the public exchequer, but at any rate to be a quasi-public fund, out of which the unfettered discretion of the moment may carve what scheme of general advantage it may choose. Endowments are not merely to be alterable as opinion alters, and variable as their surroundings vary, but are to become absolutely dependent arbitrio populm-is aurce. To such a course there are two potent objections. The first is the argument, already familiar to us, from Discourage- ment ; the fatal effect of such a course in deterring men from creating new Foundations. The second is drawn from the interests of the Foundations that already exist. To place them in this way at the disposal of the State, or one of its official Departments, without even a hortatory restriction, is to throw a fatal temptation before every embarrassed financier. The moment that a spirited foreign policy, or a confused domestic one, produced fiscal complica- tions, and made his approaching budget a puzzle to him, a Pactoliis ex machhid would be found in the endowments. The interests of charity and of sociological experiment would be forgotten in the face of a deficit; and the Commis- sioners would be called on for a schedule of the Foundations whose Term of Inviolability was over, and whose hour of what they had thus levied upon the State. It is far more frequently some obscure personage, some tradesman of humble birth, who, grateful for the education which had enabled him to acquire his wealth through honest industry, turned a portion of it from the claims of nearer connexions to enable other helpless creatures in circumstances like his own to meet the struggles which he himself had undergone." (Pari. Debates, xxxTiU. 610.) 222 revision had come. There is little fear that any of them would ever grow obsolete again. It would therefore be necessary in constituting the power of Revision, to provide that the readjustment of the property shall always be such as to leave it devoted to public uses of a permanent character. Its perpetuity — which our full powers of Supervision and Revision will have deprived of its evils — must be jealously maintained. The State must remain mere guardian and not become a free proprietor. Moreover, to meet as far as possible the former argument drawn from Discouragement, it will be desirable that these permanent public uses shall correspond to some extent with those indicated by the Founder. This might be done by a general direction that the Revision should correspond as closely as possible with the general intention of his original scheme. But it is probable that such a direction would work but ill, and would be made to restrict too closely in some cases, and hardly treated as of any eifect at all in others. We have already seen how unsatisfactory has been its working in the cy-pres decisions of Chancery.* It will be desirable to embody the restriction in a more definite form. The first rule should be that any name which the Founder has connected with the institution must be preserved ; for its preservation can cause no evil, whilst the security of its being preserved is perhaps the most potent of all encouragements to Founders.-f It is not equally necessary to extend this immunity to any other memories which the Founder, in the hope of perpetuating them, may have connected with his Charity; but in cases where the endowment is of substantial value, and the memory is worthy of such preservation, it will be desirable to do so. We may safely disregard the wishes of Thomas Nash, whose bequest to the ringers of the Abbey Church at Bath was made on condition that they should ring muffled peals on the anniversary of his wedding-day, and jojrful peals on the day of his decease, "in joyful commemoration * Supra, p. 213. t Supra, p. 103. 223 of his happy release from domestic tyranny and wretched- ness." On the other hand some respect is due to Moses Edwards' direction that his yearly five pounds' worth of coals should be distributed on the anniversary of the passing of the Reform Bill of 1832, * or even to gifts which com- memorate the Restoration of Charles Il.-f More doubt may be felt about the need for preserving to Margate her annual 50s. for a peal of grandsire triples to commemorate the accession of George the Fourth. J Mere whims may be of course disregarded, like that which directs an annuity to be distributed at Danby, in Yorkshire, on the ninth day of every month to nine poor people at the rate of ninepence a week.§ Beyond this rule of preserving names and memories, the only point is, to confine the endowment to the particular province of charity for which it was originally intended; whilst treating all the details and expedients of the original plan as freely alterable. We must adhere to the Founder's meaning, though we may discard his means. It will not be too close a restriction to cognate purposes if we require all endowments given to educational purposes to be restricted to education, since no condition of society is at present conceivable in which an educational charity, properly super- vised and periodically revisable, can fail to be of public advantage. In like manner gifts for sanitary, for artistic, or for scientific benefits, should respectively continue to be so applied. This principle was aptly exemplified when the endowments of the obsolete Lepers' Hospital, at Newcastle, were applied to support a seaside hospital for scrofula. A gift for the rehef of indigence should be still devoted to the indigent; though with power to apply it to mental instead of physical wants, to elementary schools for example, though certainly not to secondary ones. In like manner a religious endowment should be still devoted to * At Lugwardine, Herefordshire ; (Thirty-second Eeport of Inquiry Com- missioners, 2.135.) t Tenth Report, p. 15 ; Twelfth Report, p. 39. J Thirtieth Report, p. 558. § Seventh Report, p. 715. 224 spiritual purposes ; and (it will probably be necessary, for many generations yet, to add) to the same purposes, though not necessarily in the same locality, as the Founder directed. So long as the nation is divided into many faiths, and the . law sanctions them all, it is scarcely possible for any authority but the supreme Legislature to venture upon so delicate a task as the modification of a religious endowment, except when (which the endowment will usually render impossible) no one can still be found to profess that religion. When the State permitted only one faith, the problem of course was simple. If ever the introduction of a Baconian method into theological research should produce Baconian results, and the concurrence of all competent judges should again render only one faith possible, the problem would again be simple. That time must, indeed, remain remote, so long as one part of the world continues to regard theology as a subject unworthy of investigation, and another part to regard it as a subject which is only to be investigated in an unscientific manner. But till that time arrives, the doctrinal limits of religious Trusts must remain unmodifiable; and the only practical question for the State must be, whether it will permit the creation of unmodifiable limits. " No perpetuity," to use Sir John Lubbock's words, " is so bad as that of an untenable opinion." To this danger of ' Obsolescence ' in religious endowments, the same remark applies which we have already made* with reference to their 'Caducity' — ^namely, that the evil, as being less readily remediable, is more serious in the case of unestablished churches, where the State has no special right to interfere, than in that of an EstabHshed Church, which is peculiarly under its control. Strong as is the feeling in the State of New York against the ownership of landed property by religious bodies, the Legislature has not ventured to compel the Reformed Dutch Church to turn its valuable estates into personalty, though such a measure would undoubtedly have been carried if that Church were still, as it once was, the established religion of the State. * Supra, p. 14. 225 It will be scarcely possible to require the Revising Authority to respect the Founder's preferences of locality. They must be left to the general rule that all his directions though no longer determining elements, are still elements to be considered. But his expressed preferences of nationality, of sex, and of great classes — like the agricultural or the mercantile — may fairly receive imperative perpetuation. When circumstances have so completely changed that even these wide limits of purpose have become inapplicable, the time will have arrived for the action of the supreme Legislature, which created this system of Revision, to be invoked to supersede it. Beyond this there is a further question, already settled in the minds of almost all theorists, which now presses upon the attention of practical statesmen ; — whether that revision must still be reserved as the extraordinary function of the Legislature, or whether it may not be permitted to take its place as one of the normal duties of some administrative department or judicial tribunal. An intermediate step was taken in 1853,* in the hopes of reserving the exclusive authority of Parliament and yet facilitating its exercise, by authorising the Charity Commis- sion to submit to Parliament schemes for the revision of endowments. But the experience of a generation has proved this experiment to be a failure, and the Commissioners seem to have abandoned all intention to act under it. The supreme Legislature is, indeed, utterly unsuited to act as a final Court of Appeal upon these delicate questions of administrative detail. It has not the time to discuss their minutisB ; and its supervision therefore degenerates into a mere lottery of vetoes and blanks, especially at the end of the session. It is curiously susceptible to local pressure ; and no scheme for the revision of an obsolete or corrupt charity can possibly be prepared without irritating some local interest. The schemes, when they have been settled by the Charity Commissioners, must be passed through Parliament, through • 16 & 17 Vic. c. 137, ss. 54—60. 226 all the stages of a bill. The only advantage conferred by the provision of 1853 is that the schemes are relieved from the payment of fees, and from being sent before a Com- mittee of the House like a private bill. Mr. Lowe* gives it as the result of his experience as a Charity Commissioner, after attempting to carry several of these schemes through Parliament, "that they really only can be worked by consent. There is nothing before Parliament to guide it as to details ; no evidence is taken, and there is nothing but the report of the Commissioners on the scheme. The conse- quence is that if anybody gets up and objects to the details, it becomes a mere question of statement and counterstate- ment between him and the person who has charge of the bill. Parliament naturally does not like to decide, and the thing falls through." The consequence has been that, as the Commissioners complain, " Schemes elaborated by us, after careful inquiry and consideration, and calculated in our judgment to pro- duce much local and general benefit, have failed to be sub- mitted to Parliament in the face of vehement opposition of interested parties. We have possessed no means of ensuring to other proposals the effective support which they have appeared to ourselves to deserve, and without which they have failed ; whilst other measures which we have felt it our duty to recommend have been discountenanced on their proposal to Parliament, under circumstances peculiarly embarrassing to us."-f- In 1870 they say : " The conclusion has been forced on us after many earnest endeavours, that the attempts to obtain the establishment of legislative schemes in the face of opposition, involve a waste of public time. . . . The proposal, if encountered by opposition, nearly always fails of effective result." J In their Eeport of 1872, they say: "New cases are con- stantly brought under oui- notice, in which charitable endowments (frequently of considerable value) are expended * Report of Schools Inquiry Commission. Evidence Q. 6547. t Pari. Papers, 1867-8, xxf. p. 20. + Pari. Papej-s, 1870, xviL 18. 227 without advantage, if not with positive evil to the commu- nity, by reason of the obligation which the existing law imposes upon their administrators, of adhering to all obsolete or antiquated trusts. We are repeatedly compelled to feel even painfully our present powerlessness to ameliorate this evil. We are, indeed, authorised to propose, but have no eifectual power to promote, legislative schemes for the new application of endowments ; but the unsuitable- ness of that mode of procedure for the accomplishment of its objects has been ascertained, according to our experience, and before commented upon by us. We have not thought it advisable to have recourse to it during the past year." * Mr. Lowe proposes as a remedy that since these schemes " are really only available in cases of consent, it would be tXuite enough if they were to lie on the table forty days ; and in case they were not objected to were to become law without burdening Parliament to go through them— which is merely an empty form, if there has been any serious opposition they have always been dropped."* But the action of a Parliamentary veto on the work of so peculiarly expert a tribunal as the Charity Commission can seldom be of a desirable character. Parliament may insist on retaining its veto on the operations of the Commission. But so long as the moral feeling of the community sanctions the operation in Parliament of private influences which it would be thought disgraceful to bring to bear upon a judi- cial tribunal or a board of public officials, so long this veto will be a perilous power. If any veto be necessary, it might more safely be intrusted to the more impartial hands of the Judicial Committee of Privy Council. If it continue to be entrusted to Parliament it should only be upon the understanding that it is to be no more than a reserve force, capable of being put in action under the pressure of an extreme emergency, but not likely to be used more fre- quently than the corresponding power of the Crown in matters of general legislation. Or still fuller precaution * Pari. Papers, 1872, xviii. 21, t Report of Schools Inquiry Commissiou. Evidence Q. 0547. Q 2 228 might be taken by providing that the concurrence of both Houses of Parliament should be essential to make a veto effectual. The great majority of the charities which require revision are individually of a value too petty to justify the loss of public time involved in moving addresses to the Crown to protect them from revision. They are at the same time so many in number that their revision ought not to be left to the chance of extraordinary legislation in individual cases, but should be rendered the periodical and normal duty of some public department. Its regular exercise might be secured, and piecemeal ex post facto legislation prevented, by reviAdng a clause from Lord Lyndhurst's Bill of 1845 (s. 53), which required his proposed Commission to report triennially to the Crown as to the Charities which they found had become injurious, or had ceased to be beneficial, or required to be reformed or regulated. It is imperatively necessary that the primary Revising authority should not be regarded as a mere tribunal of reference, to which petitions for the reconstitution of a Charity may be addressed by the Trustees, or even by outsiders ; it must, as a branch of the executive government of the State, have full power of initiating schemes of Revision in all cases where it may find that they are needed. This right of initiative is essential, not merely to prevent the possibility of the Powers of Revision remaining entirely unexercised, but also to give their exercise a character of completeness. Without it, the charities can only be dealt with individually, as applications happen to be made ; yet the working of one Founda,tion often has so close a connec- tion with that of one or more of its neighbours, that if the one is to be effectually revised some correlative change must be made in the constitution of the others. One great defect in the cy-pres jurisdiction of Chancery has been, that the revisions effected by it can only be of this piecemeal character. The Charity Commissioners say, "There is no doubt of the expediency of utilising for the public benefit the large 229 amount of charitable endowments which are at present un- profitably or even prejudicially expended upon objects which a more enlightened experience has justly condemned ; but we venture to think that the true remedy for the evil will be found, not in the selection of particular cases for special and exceptional legislation, but in the judicious relaxation of the rule of law by which the founders of charities are enabled to attach to these endowments perpetual trusts which shall not be open to ample modification in the in- terests of society."* And again, they say, " If a declaratory enactment were passed, to the effect that all tribunals having power to establish schemes, shall be at liberty to take into considera- tion the propriety of effecting the modification of any pro- visions of the original trust, which by reason of the lapse of time or change of circumstances shall appear to be no longer calculated to promote the substantial object of the foundation, we should confidently anticipate that this wise extension of power would be followed by a progressive amelioration of the management and application of these endowments, which being efiected through existing agencies and a familiar course of procedure, would to a great extent be exempt from the distrust and apprehension that may be attached to any sweeping or sudden change, and are found not unfrequently to create serious impediments to its suc- cess."f (The allusion is, no doubt, to the Endowed Schools Act.) It must further be considered whether these powers of Revision should be entrusted, like the present cy-pres jurisdiction, to an ordinary judicial tribunal. To the existing tribunal there is the special objection that the multiplicity of equity judges of first instance produces discordance even in contemporaneous decisions. Whilst to employing any ordinasry court for the purpose there is this general objection, that the power of revision is not so much a judicial as a legislative or an administrative one. The Revising Authority must constantly be readjusting its • Pari. Papers, 1867-8, xxi. 21. t Pari. Papers, 1873, xxi. 18. 230 own rules of working, and must frequently act upon individual cases independently of rule. But courts of justice are accustomed to limit their action by scrupulous deference to precedent rather than to direct it by the latest results of a constantly accumulating experience. Their attention is necessarily fixed upon positive jurisprudence, rather than upon speculative legislation, upon the past rather than upon the future. " Their habits," as Lord Westbury says, "unfit them for those large views which should regulate the exercise of such powers."* The very habits of mind that qualify them to enforce the execution of Trusts, disqualify them for adjusting the revision of those Trusts. And even if in dealing with the subject of Charities they should consent to waive to some extent their traditionary habits, and introduce into their rules that greater degree of flexibility which would keep them con- stantly in harmony with the advancing doctrines of political science, it would be unfair to expect judicial functionaries to keep themselves informed of these doctrines for the purpose of discharging one small section of the business of their courts. A man may be a successful lawyer or even a successful judge without having applied his mind to ques- tions of moral or economical controversy. Mr. Fearon says that he finds a remarkable difierence between the schemes for management of charities which are framed by judges who have acted as Attorney-General and thus obtained special acquaintance with charity difficulties, and those framed by judges who have not.-f- On the other hand, an authority formed for the exclusive purpose of dealing with charity questions would rapidly amass the means for a thorough knowledge of the subject of charitable economy, as well in its most general principles as in its minutest local details; as the twenty-six years' experience of the present Commission suffices to show. " It is not too much," they remark, when suggesting that they should be made * Report of Schools Inquiry Commission, Evidence, Q., 16,634; of. Sir Roundell Palmer's evidence, Q. 14,178. + Ibid Q. 13,415. 231 parties to all equity proceedings -which affect a charity, " to say that in every instance in which proceedings relating to a charity now come before the courts there exists among the records of our office much information bearing upon the questions at issue; whilst in the vast majority of cases those questions have already, in some form or other, been submitted to, and to some extent dealt with by, us."* The important precedents of the University Commissions, the Endowed Schools Commission, and the Charity Commission, are perhaps sufficient to justify us in regarding it as being now a settled principle of the Legislature, that the task of revising Foundations is one which must be intrusted, not to an ordinary judicial tribunal, but to a body of experts. Moreover, not merely will questions of Charity Revision demand a species of knowledge and a mode of treatment which must be expected from a special administrative department rather than from a court of justice, but it will also be necessary to deal with them in close connection with the general administration of the country at large. The Revising authority must be in constant communication and cordial co-operation with the Home Office, the Local Government Board, and the Education Department, that its action may be well directed and well timed. It must know where the failure of an industry — as at Middlesborough during the past year — has produced a state of distress with which the ordinary local resources are inadequate to cope. It must know where the sudden expansion of an industry has produced an influx of population which needs better houses, and more schools, and churches, and allotment gardens, than its local resources are as yet sufficiently developed to supply. It must, in short, in the glowing words of Burke, " take the guage and dimensions of misery, depression, and contempt ; remember the forgotten, attend to the neglected, visit the forsaken ; and compare and collate the distresses" of all its countrymen of eveiy place and class. Moreover, if the ultimate veto upon each scheme of Revision should continue to be left in the hands of • Pari. Papers, 1878, xxiv., 20. 232 Parliament, as at present, it becomes especially desir- able that the Revising authority should be brought into direct connection with the Ministry of the day, that it may learn what schemes would be likely to be successfully carried through Parliament, and that it may get help in carrying them through. But, as has already been said, it is much to be desired that the ultimate veto should be intrusted to some body lesi susceptible than Parliament to the clamour of local interestsi The Privy Council, with its remarkable combination of the best business' men of all political parties, has naturally been ^ looked to for this purpose — as in so many previous instances, where it has acted as the " nursing mother " * of some new object of governmental eflFort. It is needless here to enter into the discussions that have taken place as to the propriety of entrusting these revision appeals to the Judicial Com- mittee — who have already, in the extension of Patents, an authority which is discretionary rather than judicial — or (as proposed by the Popular Education Commission-|-) to the Education Committee, or of creating for the purpose a new Committee of Council,! whose head should be a Cabinet Minister, responsible to the Crown and to Parliament, and should, if necessary, be also the head of the Ecclesiastical Commission. Any one of these Committees would be preferable to Parliament, as well on account of its inacces- sibility to local pressure, as on account of its permanence, which would preserve the experience of each appeal to aid in the settlement of future ones. The authorities, primary and ultimate, thus entrusted with the duty of revising Charities, would naturally also be entrusted with the cognate duty of deciding on the propriety of accepting, at its outset, each new Foundation,§ (if the State should create that discretionary power.) It may, perhaps, be suggested that an exemption from the jurisdiction of this general Revising authority should * Helps' Tlumgkta upon Gmemment, chap. x. t Report I. 536,540. X For Sir J. K. Shuttleworth'a plan, see the Report of the Schools Inquiry Commission, Evidence, Q. 17,568. For the recently created "Universities Committee of the Privy Council," see 40 & 41 Vic, i:. 48, s. 44. § Vide s^ipra, p. 36. 233 be conceded to those endo\p. 40-oti. t Supra, p. 5. Deathbed dispositions, 11" — 1:22 Digest, General, of Endowed Cfiarities, 137 Discouragement caused by revision of Cliaritiea, 1 37 — 191 Doles defined, 29 „ reprobated by all authorities, 40, 47, 4S „ reprobation of them paradoxical, 40 „ and private alms contrasted, 41, 42 „ their bad eflfects on recipients, 42, 49 „ their religious adjuncts, 42 „ their bad eflfect on non-recipients, 43 „ often defeat founder's object, 47 „ evil of, considfered mathematically, 45 „ instances of minute, excessive, and indiscriminate, 45—49 „ reorganisation of, recommended, 48 „ instances of evil resulting from, 49 — 51, 84 E. Education and free trade, 26 „ gratuitous, 52, 236 Eliot, George, quoted, 101 Endowments, evils incident to, 6, 17, 133 „ administration of, contrasted with their object, 12—10 „ educational, 12, 26, 138 ecclesiastical, and the " principles of caducity," 14 „ attitude of Nonconformists opposed to, 10, 1 1 „ prohibition of, favoured by Turgot, 7, 19, 28 restriction preferable to prohibition of, 20 „ true province of, 24 — 26 „ sociological experiments, promoted by, 25 „ legal restrictions on, cause secret trusts, 32 „ effects of Reformation upon, 57 „ not inviolable, 192 (See Charities, EnrohiwnU, Favour, Mortmain, Reatrietitm, Supervision.) Favour to charities, how shown by State, 244 Feudal rights invaded by Mortmain, 79 Fielding quoted, 63 Foundation (see Endoioments, Charities, Turgot) Founder, object of, hindered by 'his directions, 6, 8, 10, 42, 103 „ merit of, confused with value of foundation, .23 (See Vanity.) Foundling Hospitals, 53 Free trade, 26 Gladstone (see Taxation) Gut's Hospital, 61, 82, 83 278 G. H. Hardwiokb, Lord, and the Mortmaiu Act, 58, 66, 69, 72, 73 Hereditas and Quaestus, 107 Hospitals (see FownMing, Chwtfs) I. Illbqalitt (see Void) Inalienability of lands, evils of, 80 Incorporation or Charities, former advantages of, 113 „ disadvantages of, 115 Informations, costs of, 149, 161 J. Jektll, promoter of Mortmain Act, 63, 67, 187 L. Land, restriction on gifts of (see Charities, Public) „ increase in value of, 87 Leoitim, law of, 22, 101, 106 Loans, endowments for providing, 55 M. Mainmortes, Edit Des. (1743), 19 Marriage Portions (see Portions) Montesquieu quoted, 56 Mortmain, derivation of the tertn, 79 „ old law of, due to Feudalism, 79 " Mortmain Act" (9 Geo. II. c. 36), 34, 56—79, 99, 108, 124, 130 „ its object a mystery, 59 „ a halfway measure, 67 „ paradoxical nature of exceptions to, 68 „ wide construction of, 69 — 74 — (1) artificiality of distinctions between realty and per- sonalty, 69 — (2) as to bequests involving acquisition of land, 72 — (3) assets not marshalled in favour of charities, 73 (See HabdwickB; Jektll.) N. National Debt, bequests for reduction of, 187 Nonconformists hostile to endowments, 14 , and the Mortmain Act, 61 their endowments formerly illegal, 35 279 o. Obsolescence, the principle of as applied to charities, 17, 88, 160—180 (See Charities, Public, Endowments.) Ownership qualified in all countries, 181 (See Eevision.) P. Pars rationabilis, 101, 106 Pensions preferable to almshouses, 55 Perpetuities and charitable gifts, 182, 192 Pope quoted, 4, 76, 133 Portions, marriage, charities for providing, 53 Primary Schools, 12, 180 # Quakers' Tithe Bill, 62, 65 Queen Anne's Bounty, 63, 65, 66, 68 E. Eegistration, 85, 93, 130, 139 Eestrictions on Charitable Endowments, 31 — 132 (i.) On their purposes, 34 — 55 (ii.) On their subject matter, 56 — 98 (iii.) On the extent of the gift, 99—110, 72—79 (iv.) On the persons by whom given, 110 (v.) On the persons to whom given. 111 — 117 (vi.) On the time of creation, 117 — 121 (vii.) On the time of taking effect, 122—124 (viii.) Eestrictions imposing formalities, 124 — 127 (is.) Eestrictions imposing subsequent publicity, 127-133 (See Charities, Endcvyments, Mortmain^ Eevision of Charitable Endowments, 160 and the question of proprietorship, 180 as discouraging charitable gifts, 187 should be preceded by a term of inviolability, 214—218 by founders' express directions, by special legislation, 193 — 199 by Chancery, 200, 210 of the universities and endowed schools, 194 — 196 limits to extent of, 221 desirability of a special Board for, 231 (See Charities, Endowmeriis, Turgot.) S. Sacerdotal Influence over founders, 63, 68, 102, HI, 117 Secondary Schools and the principle of caducity, 12 Supervision of charitable endowments, 133 — 160 (See Charities, endowments.) Swift quoted, 31, 75, 160, 233 280 T. Taxation or Charities, 249^ „ Mr. Gladstone's speech on, 23, 251 Trustees, official, 114 ■ „ appointment of new, 114, 158 Trusts, secret as compared with legal, 32 • TuEGOT, his essay on foundations, 7, 22, 29 — 30 „ states three difficulties of a founder, 7 „ states three hindrances to revision of a foundation, 18 „ his influence on European thought,. 19 „ his view of the proper objects of charity, 30, 42 U. University lands, good condition of, 83 „ reforms of, 194-6 V. Vanity, its influence on founders, 2, 17, 56, 103 — 106 Void charitable gifts, 34 "Will, creations of foundations by, coiisidered, 22, 123, 181 „ unwillingness of men to make till near death, 121 „ attestation of, 124, 182 ■^