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 L I B RARY 
 
 OF THE 
 
 U N IVE.RSITY 
 
 Of ILLl NOIS
 
 A LEGTURE 
 
 ON THE 
 
 CHARACTERISTICS OF CHARITABLE 
 FOUNDATIONS IN ENGLAND. 
 
 DELIVERED AT SION COLLEGE 
 On March 12, 18G8. 
 
 AETHUE HOBHOUSE, Q.C. 
 
 PRINTED AT THE REQUEST OF THE PRESIDENT AND FELLOWS OF 
 SION COLLEGE. 
 
 Ant. To every Eoman citizen he gives, 
 
 To every several man, seventy-five drachmas. 
 
 Cit. Most noble Caesar! 
 
 .Julius Cjesar, Act 3, Sc. 2. 
 
 LONG 
 
 i BOOTH, 
 
 BOOKSELLER, 
 
 j J>tati0iter antr <iriM^ ^gcnf, 
 307, Regent Street, 
 
 LONDON. W, 
 
 ^D CO.
 
 A LECTURE 
 
 ON THE 
 
 CHAEACTERISTICS OF CHARITABLE 
 FOUNDATIONS IN ENGLAND. 
 
 DELIVERED AT SIGN COLLEGE 
 On March 12, 18G8. 
 
 BY 
 
 AETHUE HOBHOUSE, Q.C. 
 
 PRISTED AT THE REQVE.'iT OF THE PliESIDEXT AXD FELLOWS OF 
 STOX COLLEGE. 
 
 Ant. To every Roman citizen he gives, 
 
 To every several man, sr-veuty-five draclimas, 
 Cit. Most noble Csesar ! 
 
 Jut. res C.^sar, Act 3, Sc. 2. 
 
 LONDOX : 
 LOXGMAXS, GEEEX, AND CO. 
 
 1868.
 
 LONDOK : PniNTED BY 
 
 SPOTTISWOODE AXD CO., NEIV-STREET SQITABB 
 
 AND PARLIAMENT STREET
 
 PREFACE 
 
 It happened to me, soon after I was called to the bar, to 
 be engaged in two cases connected with gifts to what are 
 commonly termed Charities, which made me speculate on 
 the motives and causes which led to them and their 
 effects when established. The impressions made on my 
 mind were not favourable to them either in the moral or 
 the political point of view. Since that time I have watched 
 all cases of the kind which have come across me in my 
 practice, and have endeavoured to ascertain their origin 
 and their working. During the last two years I have 
 worked on the Charity Commission and there have found 
 much to strengthen and illustrate my previous views. 
 But it was not until towards the end of the year 1867, 
 when I was asked by the President of Sion College to read 
 a lecture on the subject of Charities, that I thought of 
 putting into a continuous argument the detached threads 
 of thought pre\dously floating in my mind. The subject 
 is so large, and the time allowable to a lecture so short, 
 til at it was not easy to determine what portion to select 
 for exposition. It would have been much more easy to 
 myself, and much more amusing to my audience, if I had 
 regaled them with instances of the absurd caprices in 
 wliich our law has allowed testators to indulge, and have 
 paraded the foundations for awakening sleepers in church.
 
 iv PREFACE. 
 
 for driving clogs out of chapel, for heightening the vanity 
 of pretty girls by rewarding them, and such hke vaga- 
 ries ; or if I had selected some gross instances of rot- 
 tenness and abuse and had held them up to execration. 
 Indeed there was one gentleman who expressed con- 
 siderable disappointment that tlie lecture did not con- 
 tain more matter of this kind. There were other depart- 
 ments of the subject each of which would have furnished 
 ample and interesting materials for a lecture : such as the 
 classification of Charities and the social effects of each 
 kind, the improved uses to which they might be turned, 
 the nature of the authorities existing for their control, 
 the old machine of the Court of Chancery the history and 
 reasons of its inefficiency, the new contrivance of the 
 Charity Commission its merits and defects, and sugges- 
 tions for improvement. But in the first place I believed 
 that the lectures at Sion College were set on foot not by way 
 of amusing a leisure evening but to afford a real stimulus 
 to thought. In the second place it seems to me that before 
 any very substantial improvements are made in the treat- 
 ment of Charitable Foundations it is necessary that men 
 should clearly realise what they are, what position they 
 occupy in our social system, and on what principles they 
 ought to be treated. There is doubtless a very general 
 impression that Charities are working ill ; but the vast 
 majority of men believe that this is because they are 
 diverted from their destined uses ; tliey think that if only 
 the intentions of the Pious Founders could be enforced all 
 w^ould be well. They admit the right of these Founders 
 to impose their wills on posterity ; set them up as idols 
 to be worshipped ; have no idea of stirring beyond the 
 
 uiuc-
 
 PREFACE. V 
 
 reach of their thoughts and their knowledge ; shrink with 
 horror at the notion of applying tlie property left by 
 them to any other locality or any other class of objects 
 than the Founders thought of. If some one in the reign 
 of Henry VIII. has left a house for the benefit of the 
 chui'ch and poor of (let us say) St. Athanasius in the 
 City of London^ tlien densely crowded with people, what 
 matters it that the site now fetches thousands a year ; that 
 the whole area of St. Athanasius except the church is 
 now covered with a few banks warehouses and counting^- 
 houses ; that there are no poor except the few who act as 
 housekeepers ! The Founder has named St. Athanasius 
 and St. Athanasius shall have it all. The trustees are 
 shocked at the notion of spending anything elsewdiere or 
 of applying to Chancery or the Legislature for powers to 
 do so. Tell them that the true poor of the parish are all 
 those who hew wood and draw water for the rich and 
 that they have their dwellings far away in every direction; 
 that the proper use of these funds is to apply tliem in 
 some mode by spiritual ministrations, by teaching, by 
 tending sickness, by providing lodgings, by promoting 
 cleanliness sobriety and comfort to alleviate the misery 
 and elevate the habits of those who are their poor indeed, 
 and they answer that the object may be very good but 
 tliat they cannot listen to any proposal contrary to tlie 
 Founder's direction. And people in general sympathise 
 with them. And so the shade of the Pious Founder 
 stands in the path, and blights every suggestion for 
 improvement. I veiiture to say that until this paralysing 
 
 1 Note A, p. 37.
 
 VI PREFACE. 
 
 superstition is abated there will be no substantial im- 
 provement in our treatment of Charities. Much has 
 been done, and something may still be done, to prevent 
 abuses, and in some isolated instances improvements 
 more or less useful may be effected. But nothing will be 
 done on a systematic and sufficiently large scale until 
 society at large is convinced that the main mischief con- 
 sists not in the abuse but in the use ; not in the trustees 
 but in the trusts ; not in the administration of the Law but 
 in the Law itself. And people will not even give their 
 minds to these questions while they bow down before 
 their false idols the Founders ; until they have learned 
 that few are pious ; that still fewer are wdse ; that none 
 however wise or pious has a right to dictate to posterity 
 how they shall employ the property which was his while 
 he lived ; and that the most pious and wise would be the 
 most horrified if they could see liow people think it 
 righteous to apply to one state of society directions 
 which they gave in view of another and totally different 
 state. 
 
 With these views I thought it better to go to the be- 
 ginning of the subject, to define and illustrate the essential 
 nature of a Charitable Foundation, to inquire into the 
 right of founders so to shackle projDcrty, and to trace as 
 ftir as my knowledge enables me the causes why settle- 
 ments to charitable uses stand on a different footing to 
 all others. I am not aware of any work in which this has 
 been done and I thought it might be useful to any one 
 desirous of studying the subject if the first outlines of it 
 were sketched out for him. Whether those who study it 
 agree with me or not, the truth will be thus ad\-anced.
 
 PREFACE. Vll 
 
 My only wish is that tlie views here advocated may pre- 
 vail if right and if wrong may be refuted. 
 
 There must of course be many inaccuracies and short- 
 comings of which from my limited knowledge I am not 
 conscious. There are several of which I am conscious 
 and was so at the time of delivering the lecture, but for 
 brevity's sake I was, or thought myself, compelled to let 
 them stand. Some of these, indeed all the positive in- 
 accuracies of which I am aware, I have indicated in notes ; 
 the others are inseparable, by me at least, from the nature 
 of the composition. And this I have thought right to 
 print as it was spoken : I could not alter it effectually with- 
 out wholly rewriting it and turning it from an address 
 intended to be rhetorical into a treatise of graver character. 
 If life and health are spared to me I purpose hereafter to 
 illustrate more fully the nature and effects of different 
 kinds of Foundations and to discuss modes of improve- 
 ment. For the present I do that which my hosts of Sion 
 College have asked me to do, viz. print the address which 
 I delivered in their hall. 
 
 A. H. 
 
 16 Devox.-hire Place: 
 March 21, 1868.
 
 LECTURE. 
 
 Gentlemen, 
 
 I HAVE been requested by tlie President of this College Exordium, 
 to read a paper on the Charitable Foundations of Eng- 
 land. Now the subject is one that has some interest for 
 most of us, for most of us are brought into contact with 
 one foundation or another in some relations of our life. 
 The clergy certainly are closely interested in it : of some 
 foundations they are the objects ; of many they are the 
 heads or presidents ; and there are very few in the ad- 
 ministration of which they have not a large share. I 
 only wish that I could lend to this Essay the interest 
 which from its intrinsic nature it ought to possess. But 
 though I have some practical famiHarity with the subject- 
 matter, I am wholly unpractised in the art of writing or 
 delivering lectures. I am also conscious that there sits 
 before me an audience who, though all highly educated, 
 differ widely in their lines of thought and knowledge. 
 Many will know at least as much of these matters as I do ; 
 some much more. I shall have, therefore, to ask indul- 
 gence if to some I seem too didactic or explanatory in 
 my language, and to others too obscure and technical in 
 my use of legal terms. 
 
 B
 
 2 CHARACTERISTICS OF 
 
 For be it understood that this subject belongs to the 
 province of law. What I propose to do is, not to enter 
 into a number of practical details, or to show the work- 
 ing of individual foundations further than may suffice 
 for illustration, but to exhibit the mode in which these 
 settlements of property have found their way into our 
 system, and the relation which they bear and ought to 
 bear to our other arrangements respecting property. 
 
 Now the first step towards forming a clear idea on 
 any subject is to define our terms. And here we have to 
 deal with one of the most unfortunate terms that could 
 have been selected. Because alms may be given from a 
 motive of charity, and because many of these foundations 
 have an eleemosynary object, therefore they have all been 
 dignified with the sacred name of Charities. It is, I say, 
 most unfortunate. There is a kind of sentimental halo 
 about the name which is singularly calculated to bewilder 
 and mislead the judgment. I do not exaggerate when I 
 say that not only the populace, qui vult decipi, but legis- 
 lators and even hard-headed judges have been dazzled 
 by the beauty of the word and have not seen the reality 
 often ugly enough of the thing signified. Now I must 
 beg you to divest yourselves of all sentiment and to look 
 at this matter in the dry and colourless light of your 
 understandings. The charity we have to speak of to- 
 night is not that which doth not seek her own or which 
 is not easily provoked : it is not even that spurious sort 
 which may bestow all its goods to feed the poor and yet 
 may profit nothing. Our charity may be the offspring of 
 very vulgar motives : it may bestow its goods to feed the 
 rich, and may be excellent good charity for all that. A 
 gift to aid the principal inhabitants of a town is just as 
 good a charity as one to aid the sick poor, a gift to main- 
 tain the parish stocks just as good as one to maintain a
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 3 
 
 parish hospital ; a gift to pay the National Debt as good 
 as one to relieve those ruined by unmerited calamities ; a 
 gift to perpetuate the ugliness of the donor's tomb let 
 into a church wall as good as one to teach something to 
 the ignorant and destitute. There is nothing hke going 
 to the fountain-head for knowledge, so I will read to you 
 that passage from the Statute of Charitable Uses which 
 exemplifies many kinds of charities though it does not 
 enumerate more than a fraction of them. You will ^e 
 how various they are : — 
 
 ' For relief of aged impotent and poor people, some 
 ' for maintenance of sick and maimed soldiers and mari- 
 ' ners, schools of learning, free schools, and scholars in 
 ' universities, some for repair of bridges ports havens, 
 ' causeways churches sea-banks and highways, some for 
 ' education and preferment of orphans, some for or to- 
 ' wards rehef stock or maintenance for houses of correc- 
 ' tion, some for marriages of poor maids, some for sup- 
 ' portation aid and help of young tradesmen handi- 
 ' craftsmen and persons decayed, and others for relief or 
 ' redemption of prisoners or captives, and for aid or ease 
 ' of any poor inhabitants concerning payments of fifteens, 
 ' setting out of soldiers, and other taxes.' (43 Eliz. 
 cap. 4.) 
 
 The motive then of the donor has nothing to do with 
 the matter. The destination of the gift is everything. 
 Nor need the gift be of an eleemosynary character. It 
 is sufficient if it have 2i public one. It is difficult to state any 
 rule of law which has at all times been steadily borne in 
 mind and consistently applied by our courts. But I shall charity 
 state the law with as much accuracy as is consistent with "^^^^^i '^ 
 brevity, when I say that a charitable use is a lawful public use. 
 public use. Property given to uses in which the public 
 
 B 2
 
 4 CHARACTERISTICS OF 
 
 are not interested is not given to Charity.^ When pro- 
 perty is given to uses in which a portion of society is 
 interested large enough and indefinite enough to be 
 called the public, and those uses are lawful, it is given to 
 Charity^. 
 The use You wiU plcasc to bear in mind that when I say the 
 
 beneficti!' objcct is to bc kwful, I do not mean that it must be bene- 
 ficial. It may be utterly worthless : it may according 
 to all sound laws of pohtical economy and philosophy 
 be calculated to corrupt and demoralize. But if it be 
 something on which the law has not set its mark as 
 contra honos mores it is a good charitable object. 
 Case of I might give you many illustrations to show this but I 
 
 V^HowTzi will confine myself to one, A few years ago a woman 
 Bra. p. 14. |gf|- g^j^g property for the purpose of ' printing, publish- 
 ing, and propagating the sacred writings' of Joanna 
 Southcote. You, Gentlemen, probably know the wild 
 extravagance of her teaching better than I can tell you. 
 The validity of the gift was disputed on the ground that 
 the teaching supported by it would be immoral and 
 blasphemous. But it was held that, however silly and 
 worthless the tenets might be, they were not contrary to 
 Law and the donor's will must take effect. Now observe. 
 — This decision was made in the year 1862. I remember 
 seeing some four or five years ago a statement in a news- 
 paper that the last known adherent of Joanna Southcote 
 was dead. In the Encyclopasdia Britannica you may read 
 that in the year 1860 her sect had only a nominal exis- 
 tence. Whether these statements are accurate I have 
 not troubled myself to inquire. The mere fact of their 
 being made shows the extreme paucity of the sect. The 
 delusion had run its natural course. The earnest and 
 
 1 Note B, p. 37. « ^ote C, p. 37.
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 5 
 
 confident fanaticism of the woman had in her lifetime 
 procured her a numerous following. When she died and 
 with her death her one grand prediction fell to the 
 ground, it was found that there was no root in her follow- 
 ing, and it withered away. But its natural and proper 
 course to extinction is arrested, because somebody who is 
 leaving this world chooses to say that certain property 
 which she can no longer enjoy shall be devoted to that 
 purpose. When there is property there will be found 
 somebody to lay claim to it and to qualify himself so far 
 as necessary. I ought indeed to say that the assets of the 
 testatrix when examined were found to consist mainly, 
 if not wholly, of particulars connected with land, which 
 under a comparatively modern statute cannot be given to 
 charity by will : and I believe the gift was thus reduced 
 to zero. But this was an accident. For anything our 
 Law had to say to the contrary, and but for the circum- 
 stance that the donor operated by will and not by deed, 
 and for the accident that she left no purely personal assets, 
 here was a machinery established for teaching, it might 
 be for ever, absmxlities in which no human being even at 
 the date of the foundation believed. But this Gentlemen 
 is a Charity. 
 
 Now I have selected an instance which is in some This ex- 
 respects peculiar on account of the strangeness of some a^extreme 
 of the circumstances. But I have not selected one which °^®- 
 is at all exceptional with respect to the worthlessness 
 of its object. On the contrary it is probable that in 
 this case the money would simply have been wasted. 
 But there are hundreds and thousands of other Foun- 
 dations which, in my judgment at least, are pauperising 
 or degrading all those who come into contact with 
 them. 
 
 Having then endeavoured to define and to illustrate the Nature of
 
 6 CHAEACTERISTICS OF 
 
 the ques- essGiitial character of a Charity, I want you to ask your- 
 siwiiid ^^ selves this question : How comes it that people are 
 dationsTe ^l^^^^vecl tlius to clcvote property according to their caprices 
 allowed? fQi- ever? To me it seems the most extravagant of pro- 
 positions to say that because a man has been fortunate 
 enough to enjoy a large share of this world's goods in 
 this life, he shall therefore and for no other cause when 
 he must quit this life and can enjoy his goods no longer 
 be entitled to speak from his grave for ever and dictate 
 for ever to living men how that portion of the earth's pro- 
 duce shall be spent. 
 
 You perhaps do not know that within half an hour's walk 
 from the spot where we are there are considerable tracts 
 of land of very great value which have been devoted by 
 former owners to support institutions not connected with 
 the estates themselves. I will instance one which since I 
 undertook to read this paper has acquired a mournful 
 celebrity. Some of the houses injured by the explosion 
 at Clerkenwell are on a Charity estate. The property 
 used to belong to one Thomas Seckford who in the year 
 1587 gave it to found an almshouse in a small town in 
 Suffolk. Its landlord is not only a perpetual absentee but 
 has no personality at all. For a long time the land could 
 not be used as neighbouring land was used because of 
 legal disabilities. Those were removed by the expensive 
 process of a private Act of Parliament. When this was 
 done the income grew very large, far beyond the capa- 
 bilities of the almshouse to absorb. This led to the costly 
 luxury of a Chancery suit. And after all the Court could 
 not do more than apply the surplus to some other objects, 
 all with insignificant exceptions confined to the small 
 town favoured by the Founder. 
 
 Here then we have a property the ground-rents of 
 which exceed 3,000/. per annum, and which when leases
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 7 
 
 fall in will much increase in value. ^ When that increase 
 occurs we shall, unless the law is altered, have a repetition 
 of discussions which I have already once heard in the 
 Court of Chancery : a nice weighing of the imperfect 
 expressions of one who died some three centuries ago, in 
 order to find out whether an amount of wealth which he 
 never dreamed of is to be taken away from the place 
 where it is produced by a population the existence of 
 which he never imagined, and spent wholly in a place for 
 which it is far too much f^ or whether it may consistently 
 with his commands be spread over a somewhat wider area 
 or applied in some greater measure where it is wanted.^ 
 
 Do not imagine that I am giving you an example of an This in- 
 exceptionally bad foundation. I could mention numbers an unfe-^^ 
 remoter in point of time, greater in value, where the ^^^^^^^^^ 
 circumstances have changed more, wdiere the objects are 
 less well chosen, where such poor remedies as the law 
 affords have not been brought to bear. I am taking a 
 common and rather a favourable instance of the effect of 
 private foundations after a long lapse of time. But I Thena- 
 "svant to ask this. What had Seckford done, that he is al- toTstaif- 
 lowed at this moment to sway the destinies of a large poti™^^ 
 property ? He did not create it ; he did not even im- tions ques- 
 prove it ; he was no wiser than ourselves and no better ; 
 he may have understood the wants of his own time as 
 well as we understand those of our time, but he certainly 
 did not understand the w^ants of our time so well : he did 
 not, so far as we know, possess any single quahfication 
 entithng him to legislate in perpetuum for future genera- 
 tions as with regard to this particular property he has 
 done. No ; he was a thriving man in business, and he 
 bought the land which the labour of his posterity has 
 
 1 Note D. p. 37. ^ Note E, p. 37. ^ ]^ote F, p. 38.
 
 s 
 
 CHARACTERISTICS OF 
 
 made so valuable. Why then has our law allowed him 
 this strange and enormous power? While he lived 
 doubtless he counted himself a happy man, but is that 
 any reason why he should carry away anything with him 
 on his death ; why, in common both with the wise and 
 the foolish, he should not leave his riches for other ; or 
 why, as he has done, he should call the land after his own 
 name ? 
 
 I have found that when such questions as these are 
 asked of persons not accustomed to contemplate the sub- 
 ject they are apt to startle and to appear subversive of a 
 natural and universal order of things. People argue from 
 the assumption, though it is probably presented dimly to 
 their own minds, that there is some natural right in a man 
 who is the living possessor of property to exercise an 
 eternal dominion over it. So difficult is it to disentangle 
 our minds from temporary and local circumstances, that 
 we are apt to mistake what is customary to us for 
 what is natural universal and eternal. Discussions of 
 this kind were not uncommon among jurists in the last 
 century, and were then conducted on a priori principles 
 after the then fashion of most controversies. I shall not 
 endeavour to conduct you through this maze. To any 
 one who will try the question by the historical method, 
 who will learn what is natural by inquiring what men 
 have actually done, it can hardly be doubtful that the 
 power of posthumous disposition of property is of com- 
 paratively late origin, and is the offspring of positive and 
 local law. For this may be stated as certain ; that the 
 further back we trace any system of laws the smaller we 
 find the power of posthumous disposition to be^ ; that the 
 extent and mode of the power vary in every country ; and 
 
 1 Note G, p. 38.
 
 CHARITABLE FOUNDATIONS IN ENGLAND. \) 
 
 that the present tendency in Western Europe is to treat 
 the power as having exceeded the bounds of expediency, 
 for that the Code Napoleon which much curtails it has 
 been extensively adopted and sho^vs no symptom of 
 losin cr its influence. 
 
 o 
 
 I dwell upon this topic because when controversies Common 
 respecting ancient dispositions of property arise in Eng- of the bur- 
 land, people are apt to start from the basis that to prevent pr^f_ 
 a man's making posthumous arrangements of his property 
 is to abridcfe his natural ricrhts : whereas in fact to give 
 him any such po^ver is an enlargement of his natural 
 rights. The burden of proof is thus shifted to that side 
 which (so far as regards the theory) ought not to bear it. 
 I say so far as regards the theory^ because I agree that 
 every one who desires a practical alteration in existing 
 arrangements has thrown on him the burden of proving 
 that they are bad. But here, on showing the mischief of 
 private foundations, one is met on the threshold by the 
 argument that they are made in pursuance of a natural 
 right. I deny this. I say they are made in pursuance 
 of positive law or custom established in this country, and 
 not of any natural right at all. 
 
 Be it borne in mind that all political subjects, such as Distinction 
 that we are en^acred on, may be discussed with two ofthetheo- 
 
 ^ ^ . reticaland 
 
 entirely distinct aspects : the theoretical and the practical, practical 
 In the former the question is whether a nation is bound, ^^^ ^^^^* 
 and if not bound whether it ought as a matter of ex- 
 pediency, to permit private foundations ; and here it is 
 of \dtal importance to deny the common and baseless 
 assumption that to dispose of property after death is a 
 natural right. In the latter branch of the discussion the 
 question is whether existing foundations shall be altered 
 or whether the law which permits their erection shall be 
 abrogated. Here I admit that the onus ijrobandi Hes on
 
 10 CHARACTERISTICS OF 
 
 those who wish to alter the existhig state of things. This 
 is apt to be the most immediate and pressing dispute ; it 
 touches men's interests more nearly and enlists a larger 
 number of combatants. But the former is really the de- 
 termining contest. If thinking men are once fairly con- 
 vinced that the theory of their institutions is unsound, 
 their practical reform only abides time and opportunity. 
 
 SiTiTSlt of ^^^^ ^^ ^^y ^^ ^^^^^' ^^ ^^^^^ ^ right as we see in exercise 
 posthum- is not a natural one how does it come to be established? 
 
 ous dispo- 
 sition has To bring about such a result there must be both a positive 
 
 tabiished." l^w permitting it and a desire for it working in many 
 breasts ; for neither of these forces Avould be productive 
 without the other. Both the State at large and many 
 individuals must be parties to the transaction. What has 
 induced them to be so ? 
 As regards J must licrc pass lightly over the case of dispositions to 
 estates. private uses ; contenting myself by saying that to me it 
 appears that on the part of individual owners love of 
 power and love of family have been the main motives, 
 and on the part of the State a sense or rather an expe- 
 rience of the greater stability of things when property is 
 allowed to pass from its dying possessor to his nominee. 
 As regards In the casc of Fouudations or gifts to public uses, the 
 tions. The main motives which have actuated individual owners are 
 fnSuaf not far to seek. 
 
 ThTiove ^'^^st of all, though with some hesitation, I place the 
 of power, Love of Powcr and certain connate passions. The desire 
 
 ostentation .. , . 
 
 and vanity, to dictatc as loug as possiblc to posterity, to connect 
 property with his own name and to preserve it in a sense 
 as his own after his death seems to be one of the strongest 
 and most universal passions in the breast of Man. No one 
 can have practised as a conveyancer without bearing con- 
 stant testimony to this. The soul of the dying Testator 
 beats against the barriers of the law which appear to him
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 11 
 
 to confine within such narrow hmits the power which he 
 thinks ought to be his over tlie property which he fondly 
 beheves to be his ; he is not satisfied till his lawyer has 
 exhausted his craft in devising how to prevent any one 
 becoming absolute owner of the property for as long a 
 time as may be ; and he thinks himself ill-used when he 
 finds that he cannot regulate the aifairs of two or three 
 unborn generations. It is needless to say how warmly 
 a man in this mental attitude may embrace the notion 
 of extending his dominion by giving his property to 
 pubhc uses for ever. The passions akin to love of power 
 are Ostentatiousness which is gratified by the perpetuation 
 of one's name and memory, and the Vanity which induces 
 a man to think that he can judge better what Society is 
 likely to want than Society itself can. 
 
 Another cause, which many will think still more potent supersti- 
 and which probably was so at one time, is that which I ^^^^' 
 beheve I may at this day without offence call Supersti- 
 tion. It actuates those who believe either that the donee 
 of their estate can promote their advantage after death, 
 or that the gift to Charity is in itself a good action atoning 
 for former misdeeds. In this country the former of these 
 beliefs used to be the more prevalent in old times, the 
 latter is so now. The former is connected with the doc- 
 trines relating to Purgatory and the pretensions of the 
 Catholic clergy to remit sins. The latter is of the same 
 spirit which thought that the blood of bulls and of goats 
 could take away sin, and asked whether the fruit of the 
 body might not be given for the sin of the soul. 
 
 Another moving cause far inferior I think in extent Patriotism 
 of operation to the two former, is an honest belief on the spirit' ^^ 
 part of founders that they are disposing of property in the 
 way most calculated to benefit their country. Such a be- 
 lief must be called honest, though in general it seems to
 
 12 CHARACTERISTICS OF 
 
 me to be founded on a very slender basis of knowledge 
 and a large one of conceit. If I find a man denuding 
 himself of his property in his lifetime and not attempting 
 to bind all posterity down to the details which have pleased 
 his fancy, I give him credit for disinterested motives. As 
 in other departments of life, there have been founders of 
 Charities who have doubtless been influenced by very 
 lofty motives, and it would be churlish and cynical to 
 deny it. But they are few — 
 
 Pauci quos eeqiius amavit 
 Jupiter, aut ardens evexit ad sethera virtus. 
 
 As in other departments of life so in this, the vulgar are 
 influenced by vulgar motives. If a man makes his gift by 
 will, i.e. out of other people's pockets instead of his own ; 
 if we find him stipulating for benefits to his own soul ; 
 making provisions to perpetuate his own name or arms or 
 tomb ; devising solemn oaths to deter men from altering 
 his arrangements ; in such cases, whatever fine words he 
 may have used, we may be sure he was really thinking 
 more of himself than of his fellow-creatures. Now most 
 Private Foundations have one or more of the latter class 
 of characteristics. For that reason I attribute but a minor 
 place to the influence of Patriotism or Public Spirit. 
 
 There is yet another motive which, though I put it last 
 and think it least influential, is yet too operative to be left 
 out of sight. An appreciable number of men, perhaps 
 more women, especially those who are childless and have 
 been teased by expectant legatees, are on bad terms with 
 their relations. Now the only mode of disinheriting your 
 legal heirs is to give your property to some one else. 
 What then so obvious as to give it to a charity ? here is 
 credit to be gained, and at the same time the pleasurable 
 sensation of knowing that the faces of the hungry ex- 
 pectants will look very blalik when the will is read. So
 
 CHARITABLE FOUNDATIONS IN ExXGLAND. 13 
 
 the property goes to charity, but the predominant feehng 
 in the mind of the donor is Spite. 
 
 It would indeed be but a shallow and a hide-bound Analysis of 
 philosophy which should assume to exhibit and classify not to be 
 the motives of individual minds as if they could be dis- appiiedto 
 sected and their movements displayed like the bones and ^^^^^' 
 muscles of the body. Every thinking man knows how 
 difficult it is to analyse his own motives ; much more dif- 
 ficult is it to analyse those of other men, especially when 
 all we know of them is the one solitary act that we are 
 criticising. We all know in what infinite combinations a 
 vast variety of motives are intermingled for all acts of im- 
 portance. Probably no donor was ever influenced purely 
 and simply by any one of the motives I have mentioned ; 
 probably these and others combined in different proportions 
 on each occasion ; perhaps the majority floated in a dim 
 hazy confusion of thought — the confusion which, as I said 
 at first, is connected with the use of the word charity ; the 
 thought that because under my will some people are con- 
 stantly to receive gifts those gifts must be good for them ; 
 that because the arrangement is mine I am constantly the 
 giver, and that this will somehow redound to my credit. 
 
 But though such classifications as these may mislead But true of 
 when applied to individual cases, they may still be very 
 true as to the mass. If it were not so we should never 
 act with certainty in social matters. We never know with 
 certainty what motives may sway a particular man, but 
 we do know with certainty what motives sway multitudes 
 of men over long periods of time. So it may be true that 
 an individual testator's motives may elude any accurate 
 and exhaustive analysis ; and yet on looking at a great 
 number of similar transactions you may see sufficient in- 
 dications to reveal the mainsprings of them. You must 
 take my analysis of motives only for what it is worth ; it
 
 14 
 
 CIIAKACTEEISTICS OP 
 
 So much 
 for the 
 motiA'e of 
 
 donorp. 
 
 Now for 
 those of 
 the State. 
 
 Phases of 
 the law 
 bearing on 
 settle- 
 ments of 
 property. 
 
 As to 
 
 private 
 
 estates^ 
 
 is necessarily rough and imperfect : I shall be very glad 
 to have it improved ; and the subject is one on which 
 most men, certainly most of you gentlemen, must have 
 had the opj^ortunity of making their own observations. 
 Such as it is, it is what has occurred to me on a subject 
 to which my attention was attracted early in my profes- 
 sional hfe, and which I have watched more or less closely 
 ever since. 
 
 But whatever I may have omitted, enough probably 
 has been said to account for the phenomenon of the 
 existence of private foundations, so far as regards the 
 founders, without supposing that they have had any na- 
 tural right or have done anything else than what men 
 do in other departments of life, viz. encroach on the 
 rights of their neighbours. 
 
 But then comes the question, how did the State come 
 to allow such a condition of things ? This is a much 
 more complicated question, which I could hardly hope to 
 solve clearly in a long treatise, much less in this brief 
 lecture. Still it may be interesting and not wholly un- 
 instructive to glance at the long struggles between land- 
 owners who desired perpetual settlement on the one 
 hand, and the Kings and Judges who curtailed it on the 
 other, and to show how in the case of Charities alone 
 has the right of Foundation or Perpetual Settlement pre- 
 vailed. 
 
 First, with regard to private estates. Our feudal an- 
 cestors kept before their eyes much more clearly than 
 we do the principle that Man is Lord of the earth for his 
 life only. The early benefices or feuds endured only 
 for the life of the beneficiary. But the usual desires of 
 mankind soon manifested themselves. The great feuda- 
 taries wished to leave their fiefs to their children, and 
 favoured by circumstances they succeeded in acquiring
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 15 
 
 the power of posthumous disposition. They then wished Early on- 
 to prevent the lands passing away from their famihes ; 
 and so they invented a new mode of disposition by which 
 the land did not go to anyone in absolute ownership 
 or fee simple but was given to one and the heirs of his 
 body which was intended to create a limited ownership 
 or fee tail. This disposition would, according to the Unbarr- 
 settlor's intention, carry the land through all generations their na- 
 of his descendants so that it should never be aliened by ^^^^" 
 them. But this device was defeated by the astuteness Butex- 
 or audacity of the Judges, who it is reasonable to sup- away by 
 pose were instigated or at least encouraged by the ^^^"^^ ^^^* 
 Crown. The Judges held that by a gift of this kind all 
 that was meant was an absolute gift in fee simple on 
 condition that the donee had a child, and that the mo- 
 ment he had a child he had performed the condition and 
 took the land in unfettered ownership. The Barons staty^of 
 
 ^ entails. 
 
 however were not so easily defeated. They were power- 
 ful enough to procure an Act of Parliament (passed in 
 13 Edw. I.) which provided in effect that settlements of 
 this kind should be construed literally and should take 
 effect according to the form of the gift. This law re- 
 mained in force for a long time. When it was first 
 encroached on we cannot tell. It was not repealed but 
 was gradually undermined by crafty devices of the Law- 
 yers which were finally established as sound legal pro- 
 cesses in the reign of Edward IV. This time the means ultimately 
 adopted were fictitious lawsuits, the most efficacious of fictitious ^ 
 which were called Eecoveries. In these it was pretended p^Q^^^^^^- 
 that the entailed land belonged to a stranger who brought 
 his action and got his judgment ; but this stranger was 
 really the agent of the tenant in tail, and when he got 
 the land was bound to deal with it as his employer di- 
 rected. Thus the tenant in tail became the absolute
 
 16 
 
 CHARACTERISTICS OF 
 
 Gifts to 
 religious 
 bodies. 
 
 owner. The Barons had by this time much declined in 
 power and did not pass any fresh statute on the subject. 
 But they were not satisfied with the amount of dominion 
 allowed by a simple entail capable of being defeated by 
 Eecovery. They now had recourse to the Lawyers, who 
 devised new modes of shifting the land from one to 
 another by which it might be kept from alienation for 
 long periods of time. No sooner did this new form of 
 the old evil appear than the Judges began to counteract 
 it. They laid down as a maxim that the Law abhors a 
 perpetuity. What was a perpetuity was not so clear, and 
 the reasonings on this subject are intricate and perplexing 
 to the last degree. Suffice it to say here that any device 
 calculated to prevent property from vesting in absolute 
 ownership for any longer period than for existing lives 
 and twenty-one years more, was ultimately found to be 
 that wicked thing which the Law abhors, and was ad- 
 judged to be void accordingly. And such is the Law to 
 this day. 
 
 In the case then of private estates we see that the 
 selfish ambition of possessors of property has always been 
 attempting to forge yokes which neither we nor our fore- 
 fathers have been able to bear. It is very remarkable, 
 and it is perhaps the strongest possible evidence of the 
 pervading national sense of the impolicy of perpetual 
 settlements, that they have been defeated not by direct 
 legislation but by the action of Judges ; who first refused 
 to read plain words in their plain sense, then allowed 
 farces to be acted in their courts and called them reahties, 
 and finally invented new doctrines to abate the ever- 
 springing evil. Such shifts as these were thought better 
 than allowing property to be tied up by deceased owners. 
 
 The next great division of Settlements I have to men- 
 tion consists of those made by private owners in favour
 
 CHARITABLE FOUXDATIOXS TX ENGLAND. 17 
 
 not of individuals but of Eeligious Bodies. Tlie subject of 
 gifts in mortmain is so familiar to every reader of history 
 that I may run quickly over its main features. All know 
 how the Monasteries invited and obtained large gifts to 
 themselves ; how statute after statute was aimed at the in ; 
 how they eluded the law by new inventions, such as uses 
 fictitious recoveries and those portentous leases of hmi- 
 dreds or thousands of years which still find a place in our 
 legal system and astonish the lay mind ; how the Legis- 
 lature at length prevailed, but not till after the Eeligious 
 Bodies had acquired enormous possessions ; and how these 
 enormous possessions were stripped from them as oppor- 
 tunity occurred. 
 
 The history of these gifts points to my mind precisely ^'"/"l.^^^ 
 the same moral as that of private estates, but in a more 
 impressive way. In this case as in the former the bulk 
 of the nation were on one side, the few selfish and am- 
 bitious on the other. In the former case the national 
 will was carried into effect by the Judges even in contra- 
 vention of the Legislature for the simple reason that the 
 Barons, the most powerful branch of the Legislature, were 
 in favour of perpetual settlements. In the latter case, 
 the interests of the Barons were opposed to perpetual 
 settlements, and the national will was therefore enforced 
 throuo'h the Lec^islature. In the former case the victc^rv ^^**^®' 
 
 "-^ , ' ' " ments to 
 
 of the national will was complete, for the iuds^e-made law private 
 
 ,, . . , *" uses were 
 
 sooner or later drew all private estates within its influence defeated 
 and freed them all from the shackles forged by former of Lawand 
 o^vners ; therefore there was no violent convulsion. revoiudon 
 
 latter case the victory was incomplete, for the statute-law Those to 
 only affected future gifts but left former ones settled as reilg'ious 
 they were; therefore came violent convulsions. The th^Le^'f- 
 moment that any rehgious bodies became unpopular the ^^.^"^^ ^."'^ 
 reigning Monarchs hastened to confiscate their possessions, lence. 
 
 c
 
 18 
 
 CHARACTERISTICS OF 
 
 Gifts to 
 Charities. 
 
 Influence 
 of the 
 Clergy. 
 
 The two first Edwards found it easy and convenient to 
 strip the Templars. Henry V. dissolved all the alien 
 Priories and seized their lands to the great contentment of 
 his subjects. Cardinal Wolsey found no difficulty in sup- 
 pressing upwards of thirty religious houses to found his 
 colleges at Oxford and Ipswicli. And Henry YIII. 
 swallowed up the rest : first the lesser monasteries, then 
 the greater, then the Knights of St. John, and lastly the 
 whole category of chauntries guilds priests brother- 
 hoods obits lamps and suchhke. To my mind this 
 history is most impressive, and its moral is this ; that the 
 English nation cannot endure for long the spectacle of 
 large masses of property settled to unalterable uses. 
 
 I have now exhibited to you in such rough way as the 
 time permits the fate of perpetual settlements when made 
 by Private Founders upon Private Families or upon Ee- 
 ligious Bodies. The only considerable mass of property 
 that remains subject to private dispositions is that given 
 to Charities.-^ How came it about that this has not shared 
 the same fate ? 
 
 In the first place we must have regard to the strong 
 leaning of the Clergy. From very early times they fa- 
 voured testamentary dispositions and there are decrees 
 of early provincial councils against those who denied the 
 sanctity of wills. ^ They also leant strongly in favour of 
 almsgiving. Without stopping to speculate on the causes 
 of this leaning or its connection with Works of Super- 
 erogation and other kindred doctrines, I will give two 
 curious instances of the contrary bearings of the clerical 
 and lay minds in this particular. 
 
 In the constitutions of Othobon (passed in the reign 
 of Henry III., a.d. 1268) it is declared that in cases of 
 
 Note I], p. 38. 
 
 2 Note I, p. 39.
 
 CHARITABLE FOUXDATIOXS L\ ENGLAND. 19 
 
 sudden death 'men's piety acts mercifully towards tlic 
 
 ' deceased when his temporal goods follow himself l)y 
 
 ' means of distribution to pious uses and favourably iu- 
 
 ' tercede for him before the face of the Heavenly Judge.' 
 
 And accordingly the goods of intestates went to the 
 
 Ordinary to be converted in pios usus. But in the year i3 Edw. i. 
 
 1285 only seventeen years later when Edward I. was on 
 
 the throne, a statute was passed to compel the Ordinary 
 
 to pay the debts of the deceased. 
 
 The next instance belons^s to much more modern times. 2 and s 
 
 ... . . Edw. VI. 
 
 In the service for the Visitation of the Sick, as settled in u Car. ir. 
 
 the reign of Edward VI., and in that of Charles II. (being 
 
 you will bear m mind the subject of legislative enactment) 
 
 the Eubric gives this direction : — ' And if ' the sick man 
 
 ' hath not before disposed of his goods, let him then be ad- 
 
 ' monishedto make his will, and to declare his debts what 
 
 ' he oweth, and what is owing to him.' In the Canons of 
 
 1603, it is ordered that parsons do dihgently, ' and es- 
 
 ' pecially when men make their testaments,' call upon, 
 
 exhort, and move their neighbours to give to the chest for 
 
 alms. 
 
 Of course the Clergy did not think it a matter of indif- 
 ference whether or no a man paid his debts, nor did the 
 Laity think it a matter of indifference whether or no he 
 gave alms. But the idea of Piety or Charity was upper- 
 most in the minds of the former, and that of Justice in the 
 minds of the latter. 
 
 Now in the times in which our laws took their root Causes of 
 and grew into shape the Clergy were much the most in- ence. 
 fluential body in the country. They were the wisest part 
 of the community ; not indeed wiser than the whole com- 
 munity of which they formed part, but the wisest part the 
 most cultivated with the widest views and probably the 
 greatest amount of public spirit. This may be said of
 
 20 CHARACTERISTICS OF 
 
 them certainly down to the close of the Wars of the Eoses, 
 perhaps a little later. Since then they have only been on a 
 par with other men as well cultivated as themselves. This 
 superiority on the part of tlie Clergy was attended by in- 
 evitable and well-deserved power. They exercised real 
 spiritual power over their countrymen — power such as no 
 laws can give and none can take away — the influence 
 of soul upon soul, convincing men's understandings 
 moving their hearts and constraining their wills. In 
 this matter of Charitable Foundations as in some others 
 they have left impressions which have not yet passed 
 away. 
 
 wr^?rd"d ^ovL will, perhaps, ask why that influence did not foster 
 
 not protect and sustaiu monastic as well as eleemosynary foundations ? 
 
 teries. WeU, lu vcry early tunes it probably did so ; but m later 
 times the Clergy were divided among themselves, and long 
 before the Eeformation, the Seculars then decidedly the 
 abler men, were little if at all less hostile to the Eegulars 
 than were the Kings the Barons or the Students of the 
 new learning. Whereas for aught that appears all united 
 in commendation of almsgiving. There were also much 
 stronger reasons for uprooting the Monasteries to be found 
 in their numbers the extent of their property and the 
 OiTence they gave to the nation. 
 
 Opinion But whatever was the cause, it may safely be stated 
 
 that a gift pit-.p 
 
 ill alms that at the tune of the Eerormation and down to a much 
 was Hm'oji ^^^^^ period not only personal almsgiving but the devo- 
 tion of property to perpetual alms was almost universally 
 deemed a good and pious act in itself, quite independently 
 of the results it Avas calculated to produce. I belie\'e that 
 the same opinion still prevails among a large number 
 though not among the most thinking part of the nation. 
 There are indeed indications that even three centuries 
 airo the widest observers, taught probably by the spectacle
 
 CIlARITABLl!] FOUXDATIOXS IN ENGLAND. 21 
 
 of tlie Mona.steries, perceived that alms^^nving had at lea^t 
 its evil side. Either Henry VIII. or the great statesmen 27 Hen. 
 who aided him through the Eeformation in enacting the 25, a.dT' 
 earliest Poor-law struggled hard for discriminating be- ^^^^' 
 tween the idle and the industrious. The poor to be sup- 
 ported were those who had been three years resident. 
 Idle children between the ages of five and fourteen were 
 to be caught up and put to industrial employments. Va- 
 liant beggars were to be whipped for the first offence 
 and afterwards to be more severely punished. And the 
 Act then proceeds as follows : — ' No person shall make 
 ' any common or open dole nor give any money or alms 
 ' but to the common boxes and common gatherings in 
 ' every parish upon pain to forfeit ten times so much as 
 ' shall be given.' But it is certain that these injunctions 
 found but little response in the Country. 
 
 At the time then of the Eeformation (which was the General 
 critical period for Private Foundations) the mental attitude of aW 
 of the nation was favourable to almsgiving on moral and g^^'^^s- 
 religious grounds, and probably as regarded the oreat 
 majority not averse to it on economical grounds. But dissoIu- 
 besides these general causes there was I think a potent Monal 
 special cause in one of the peculiar maladies of the day. ^^^^®^' ^^^ 
 
 T 1 • 1 T/p T 1 • • conseqiien 
 
 I speak with great dimdence on this point, because one distress, 
 of the weightiest of all authorities Mr. HaUam^ has ex- ofth^"^^ 
 pressed a clear opinion that the Dissolution of Monasteries ^°°^'^^^^- 
 and the enactment of Poor-laws did not stand in the rela- 
 tion of cause and efiect* But though it may be true as 
 he contends that the monasteries caused more beggary 
 than they cured, yet the cause was comparatively remote 
 and latent, the cure immediate and visible ; and it cannot 
 be doLibted that as a matter of fact the Dissolution sud- 
 
 ' Note J, p. ;39.
 
 22 CHARACTERISTICS OF 
 
 denly deprived great numbers of their accustomed support. 
 27 Hen. In the year 1535, simultaneously with the Dissolution of 
 25. ^'^'' the smaller Monasteries, we find the earliest enactment of 
 a Poor-law. The Dissolution of the greater Monasteries 
 in 1540 was followed at intervals by other attempts to 
 legislate for the poor, ending in the establishment of a 
 43Eiiz. complete and universal system of rating in the year 1601. 
 cap. 2. Considering the close proximity of these events, and the 
 severity with which at the same period laws were enacted 
 and executed against beggars and vagrants, it is hard to 
 suppose that legislative provisions for the poor were not 
 at least accelerated by the immediate effect of the Disso- 
 lution of Monasteries.^ 
 Connection Precisely the same special cause favoured the retention 
 thrPoor- of existing eleemosynary Foundations and the encourage- 
 EiTemos^'- ^^^^ ^^ 1^^^ oucs. Thosc cxistiug at this time were 
 naryFoiia- principally of three kinds; Hospitals for the sick usually 
 those sick of contagious diseases such as lepers ; Hospitals 
 for the old or infirm being establishments which we now 
 more commonly call Almshouses ; and gifts to parish 
 officers for the general use of the Poor. All these institu- 
 tions were calculated to relieve the urgent distress that 
 was felt. While, therefore, all Private Foundations devoted 
 to mere religious uses, thenceforth called superstitions, 
 were swept into the Treasury, to issue forth again, partly 
 in strengthening the secular Clergy by founding Bishops 
 Deans and Chapters, partly in establishing grammar- 
 schools, and partly and mainly in grants to private per- 
 sons, all those Foundations which had an eleemosynary 
 object were left untouched. They aided the efforts of 
 the Government to make provision for the Poor. The 
 Foundations and the collections for the Poor were intended 
 
 ' Note K, p. 39.
 
 CHARITABLE FOUNDATIONS IX f^XGLAXD. 23 
 
 to work hand in hand, the latter probably as subsidiary 
 to tlie former. For the Legislature did not content itself 
 with sparing existing Foundations. It invited new ones. 
 In the year 1597 was passed the statute of Hospitals, 39 eHz. 
 whereby Private Founders were enabled to create cor- ^^^" 
 porations for maintaining hospitals, maisons de Dieu, 
 abiding-places, or houses of correction. Next in the 43Eiiz. 
 statute-book to the Poor-law of 1601 is a statute for the ^^p«-2.3,4. 
 relief of soldiers and mariners, and next to that is the 
 statute of Charitable Uses from which I read you an 
 extract earher in the evening. 
 
 It may be a not uninteresting specimen of the mode in Evidence 
 which the leadino^ men of Queen Elizabeth's time regarded Lord Coke 
 gifts to charity, if I read you the expressions used by Lord resp^ec^ 
 Coke concerning the foundation of the Charter-house. Q,'arit!ibie 
 Sutton's heirs disputed the validity of the gift. The case Eounda- 
 itself turned on the flimsiest technicalities, and is wholly 
 without interest ; but in one of those prefaces in which 
 Lord Coke dehghts to set forth the great value of his 
 Eeports, he mentions Sutton's case thus : — 
 
 ' I have reported, in the first place (though it be not 
 ' first in Time) the Case of the Hospital of King James, 
 ' founded by Thomas Sutton, Esq., for that in mine Opinion 
 ' it doth merit to have the Precedency for two causes.! 
 
 The first is a technicahty, and I omit it. The second 
 is — 
 
 ' For that the Foundations of this Hospital is opus sine 
 ' exemplo. The Imitation of things that be evil doth for 
 ' the most part exceed the Example, but the Imitation of 
 ' good things doth most commonly come far short of the 
 ' Precedent : But this Work of Charity hath exceeded any 
 'Foundation that ever was in the Christian World, nay 
 ' the Eye of Time itself did never see the like.'
 
 24 
 
 CHARACTERISTICS OF 
 
 He til en goes on to state the nature of the foundation, 
 and proceeds t' us : — 
 
 ' And this Case was adjudged with great Applause of 
 ' all that lieard it, or of it, and principally for four Causes. 
 ' First, for tlie Honour of our Eehgion, that hath produced 
 ' sucIj a Work of Piety and Charity as never was in the 
 ' Christian World for the First Foundation. Second, for 
 ' the Glory of the King's Majesty, to whom ex congruo and 
 ' condupio it is dedicated and beareth his Name. Third, 
 ' for the increase of Piety and Charity ne homines deterre- 
 ' rentur a pii^ et bonis operibus. And, lastly, ut obstruatur os 
 ' iniqiia loquentium. And I dare affirm it for the Honour 
 ' of our Eeligion that more of such good Works of Piety 
 ' and Charity have been founded within this Eealm since 
 ' the Beginning of the reign of our late Queen Elizabeth 
 ' of ever-blessed Memory during the glorious Sunshine of 
 ' the Gospel than in many Ages before. And it hath 
 ' been observed that (by the Blessing of Almighty God) 
 ' this Kingdom of England for Piety Profit and Pleasure 
 ' viz. for this and such other Works of Piety. 2. For 
 ' the Crown's Inheritances of Honours Manors Land, &c., 
 ' and Certainty of yearly Profit, and lastly for Forests 
 ' Chases Parks and other Places of Pleasure hath ex- 
 ' (deeded the greatest Monarchy in the Christian World.' 
 
 It is singular enough that the very next case in the book 
 is Mary Portington's case, which relates to a settlement to 
 private uses. He could see the evil of the continuance of 
 private wills where the uses were private but where the 
 magic name of Charity was used he had no eyes to see the 
 seh'same mischief Of Mary Portington's case he speaks 
 thus : — - 
 
 ' Then have I published in Mary Portington's Case, for 
 ' tlie general Good both of Prince and Country the 
 ' honourable Funeral of fond and new-found Perpetuities,
 
 CHARITABLE FOUNDATIONS IN ENGLAND. ZO 
 
 ' a moustrous Brood carved out of mere Invention and 
 ' never known to the ancient Sages of the Law ; I say 
 'monstrous for that the NaturaHst saith Quod monstra 
 ' generantur propter corruptionem alicujus principii. And 
 ' yet I say honourable, for that these Vermin have crept 
 ' into many honourable Famihes. At whose solemn 
 ' Funeral 1 was present and accompanied the Dead to 
 ' the Grave of Obhvion, but mourned not for that the 
 ' Commonwealth rejoiced that fettered Freeholds and 
 ' Inheritances were set at Liberty, and many and mani- 
 ' fold Inconveniences to the Head and all the Members of 
 ' the Commonwealth thereby avoided.' 
 
 I have thus endeavoured to indicate the main causes Position of 
 which have led to the exceptional position which Charit- Founda- ^ 
 able Foundations occupy in our law of property. For [j^^^^J^f J'^^ 
 since the year 1601 there has only been one attempt to oneoi^, 
 modify the power wliich the law gave of setthng property decisions 
 
 . which have 
 
 for ever to charitable uses. extended 
 
 In the year 1736 an Act, commonly but inaccurately '^^^^^^''' 
 called the Statute of Mortmain, was passed with the view ^ ^^^ ^^ 
 of placing restrictions on posthumous dispositions to chari- ^^p. 36. 
 ties. But its effect has been very irregular and partial ; 
 there is much property to which it never was intended to 
 apply, many classes of institutions are specially exempted 
 from its operation, and on the whole its meaning has 
 been confined narrowly by judicial decisions.^ Whereas 
 the Act of 1601 has found most zealous aid from Courts 
 of Justice. They went wondrous lengths in supporting Leaning of 
 gifts to the objects which they believed to be so ad- [ureiV"' 
 mirable. They apphed to charitable gifts rules applicable ^\\7,;/i, 
 to none other. They have held that an intention to give oift^.^ 
 to Charity enlarged the right of ownership ; so that 
 
 1 Note L. p. 39.
 
 26 CHAKACTERISTICS OP 
 
 married women and tenants in tail who could not give i 
 an acre to their children could give their whole estate to 
 Charity.^ Moreover, they held, and still hold, that a con- 
 dition which one would have thought necessary for every 
 gift and which is necessary for every other kind of gift, 
 viz. to designate the object with sufficient certainty, is not 
 necessary in the case of charitable gifts. If it can be 
 shown from the whole of a man's will that he meant his 
 property to go to Charity, to Charity it goes. It does not 
 signify that he has omitted to state in what place by 
 whose hands to what objects in what manner the fund is 
 to be applied ; the Court of Chancery will supply all those 
 details for him. With a statute conceived in such wide 
 terms and so earnestly seconded by the Judiciary, no 
 wonder if Charitable Foundations have spread through the 
 land until their number has become bewildering and the 
 amount of their property serious. 
 
 The number of Charitable Foundations can only be 
 guessed at. There has been no enumeration since that of 
 the Commissions of Enquiry which worked from the year 
 1818 to the year 1837. The number reported on by 
 them was nearly 29,000.^ But their reports were very 
 imperfect as is learned by discoveries constantly made by 
 the existing Commission. It has happened to myself 
 within the last few weeks to hear of two foundations 
 both of old date which had previously escaped from all 
 public records. One belonged to a considerable country 
 town and has an income of upwards of 1,000/. a-year. 
 The other has its head-quarters in London is conducted 
 by very distinguished trustees and possesses a capital 
 stock exceeding 100,000/. besides other property. You 
 would have thought it impossible that Foundations so 
 
 1 Note M, p. 40. » Note N, p. 40.
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 27 
 
 rich and of so public a character should have been with- 
 drawn from all enquiries ; yet such is the fact. Consider- 
 ing the great number of new foundations in the last 
 thirty years, the great number which have been dis- 
 covered and registered since the existence of the present 
 Commission, and the great number which doubtless are 
 yet to be discovered, we shall probably be rather under 
 than over the mark if we say that there are 40,000 of 
 such foundations. 
 
 Their income baffles calculation still more ; for it has Their 
 all the elements of uncertainty which belong to the nume- 
 ration of them, and other elements besides. I do not 
 mysehP beheve that Mr. Gladstone overstated it when he 
 put it at 3,000,000/. a-year. The incomes vary in amount 
 from a few shillings up to 55,000/. a-year. I mention the 
 largest I know : there may be some great collegiate 
 institutions which have still larger incomes, but of those 
 we have no return. 
 
 To those who tliink that almsgiving is good in itself Their 
 such an enumeration must be very gratifying. But if we 
 are to ask what is the result, the only answer I can give 
 will not please so much. This part of the subject I must 
 pass over quickly. My aim to-night, as you will remem- 
 ber, has been to show the legal position of Charitable 
 Foundations and the moral bearings .of the Law under 
 which they exist. If I were now to embark on the question 
 of their economical and social effects, to state fully and to 
 prove by instances what is their actual working, I should 
 have to deliver you another address fully as long as that 
 which has occupied you so long already. The best thing 
 I can do will be to refer to some remarks delivered in the 
 House of Commons in the year 1863 in language more 
 eloquent than I can command. Speaking of what he calls 
 the smaller charities Mr. Gladstone says : —
 
 melius pp 
 
 28 CHARACTERISTICS OF 
 
 Glad ' Three times have these Charities been the subject of en- 
 
 na^nclai ^ ' ^uirj, aiicl the Charity Commissioners of Lord Brougham 
 
 State- ; ^YiQ Poor-law Commissioners of 1834 and the Education 
 
 — -~ pp_ 
 
 eqq. ' Commissioners appointed some four or five years ago all 
 ' condemned them and spoke of them as doing a greater 
 ' amount of evil than of good in the forms in which they 
 ' have been established and now exist.' 
 
 He then quotes from the Commissioners of 1834 : — 
 ' "In some cases charitable foundations 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 propor- 
 ' " tion of the poorer classes, wlio 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 tlius not only collected but 
 ' " created in the very neighbourhood whence the be- 
 ' " nevolent Founders have manifestly expected to make 
 ' " it disappear." ' 
 
 He then proceeds to cite a passage from the Eeport of 
 the Commissioners of 1861 : — 
 
 ' " The hand of living charity is held out only to pre- 
 
 ' " sent need ; it promises no periodical alms to indolence 
 
 ' " and importunity ; andif it necessarily somewhat impairs 
 
 ' " the spirit of independence it produces goodwill and 
 
 ratitude. The dead hand of the founder of an an- 
 
 " nual dole does not distinguish between the year of 
 
 " prosperity among the labouring classes and years of 
 
 " distress ; in prosperous years it leads those who are 
 
 " not in need to represent themselves to be so ; it holds 
 
 " out aniuial ho])cs to impi'ovidence : it more frequently 
 
 ( ((
 
 CHARITABLE FOUXDATIONS IN ENGLAND. 29 
 
 ' " excites jealousy and ill-feeling than goodwill both on 
 ' " the part of the recipients towards the distributors 
 ' " of the Charity and among the recipients themselves. 
 ' " For one person who receives substantial benefit from 
 ' " these doles many feel their demoralising effect. At 
 ' " Salisbury for five vacancies in the list of pensioners on 
 ' " one Charity there were sixty-two applicant-^, all of 
 ' " whom had probably nursed expectations more or less 
 ' " subversive of their industry and used importunities 
 ' " more or hss subversive of their self-respect." ' 
 
 Having thus cited the recorded opinions of eminent 
 bodies of men who had given special attention to the 
 subject the speaker proceeds to illustrate his theme by 
 example : — 
 
 ' Let me now cite an instance or two. I believe tliere 
 ' is no city in the country which is richer in these charities 
 ' than Coventry. Well, was there ever a case of a city 
 ' where upon the first arrival of distress tlie labouring 
 ' class were so rapidly and so entirely laid prostrate ? 
 ' Compare the case of Coventry where these Charities 
 ' abound with the case of the towns of Lancashire in 
 ' most of which they are comparatively few. Distress 
 ' appears in Coventry and before it has been there a 
 ' month the whole country is sohcited and solicited with 
 ' too good cause to subscribe for its relief. Distress 
 ' stalks into Lancashire and remains there for six nine 
 ' or twelve months before any appeal whatever is made 
 ' to the public at large. 
 
 ' Again an application was made to me from Bristol on 
 ' behalf of the " valuable Charities " of that city, but ac- 
 ' cording to evidence before me those Charities are not so 
 ' very valuable. Instead of being valuable the Eeport of 
 ' the Commissioners seems to show that tliey are to a
 
 30 CHARACTERISTICS OF 
 
 ' great extent pernicious. Mr. Cousins, vestryman of St. 
 
 ' Paul's, Bristol after forty years' experience of these 
 
 ' matters says : — 
 
 ' " Small charities of from 1/. to Ql. pauperise the people ; 
 
 ' " they destroy the sense of shame and the deserving do 
 
 ' " not get them. The poor people (he adds) spend more 
 
 ' " time in looking after such gifts than would suffice to 
 
 ' " gain the same sums by industry." And the very same 
 
 ' evidence you may hear from the most judicious clergy- 
 
 ' men and administrators of alms in other parts of the 
 
 ' country. The Education Commission of 1861 very 
 
 ' naturally say, " These charities then by their operation 
 
 ' " are teaching indolence mendicancy servility and false- 
 
 ' " hood to the poor of Bristol almost as effectually as 
 
 ' " industry the love of independence and veracity can be 
 
 ' " taught by means of the funds which the State supplies 
 
 ' " in aid of the British schools.' " 
 
 ****** 
 
 'But I will now take one of the cases which really 
 ' deserves to be made known however modest those who 
 ' are connected with it may be. I refer to Jarvis's charity. 
 ' The founder, poor man ! could hardly have expected to 
 ' obtain notoriety through public discussion in this House. 
 ' Mr. Jarvis died in 1793. He left about 100,000/. for the 
 ' poor of three parishes in Herefordshire, to be given in 
 ' various ways for physic clothing food and so forth ; 
 ' but there was one apphcation of his money to which he 
 ' had a particular aversion — he absolutely forbade that 
 ' any of it should be laid out in building. That was ex- 
 ' pressly excluded by the terms of his gift. I suppose his 
 ' idea was to supply the current wants of the poor ratlier 
 ' than to be immortahsed by a stately structure. And 
 ' so far I think he deserves all praise.^ The popu- 
 
 1 Note O, p. 40.
 
 CHARITABLE FOUNDATIONS IN ENGLAND. 31 
 
 ' lation of these three parishes at the first census after 
 
 * Jarvis's death taken in 1801 was 860 ; and in 1851 
 ' it was 1,222. What was the reason of this increase 
 ' of population ? Had employment increased there? No. 
 ' Had trade come there ? No. Had manufactures been 
 ' established ? No. Were wages higher in these parishes ? 
 ' No ; they were lower by 2^. a week. Were the dwell- 
 ' ings good ? No ; they were the most miserable and 
 ' scandalous, so we are informed by authority, that dis~ 
 
 * graced any part of the country. But the people went 
 ' into them, and went into them naturally enough, for it 
 ' was in order to wait for the doles ; for tliose gifts which 
 ' by Jarvis's mistaken and misguided benevolence were 
 ' distributed to them pretty nearly doubled the estimated 
 ' gross income of the agricultural population of tliose 
 ' parishes. That was for people in such a rank a splendid 
 ' an intoxicating inducement. But was it wise ? Was it 
 ' good for them ? Or again was the evil only an econo- 
 ' mical evil ? Did the morals of these poor people improve ? 
 ' The statement of the authorities who have investigated 
 ' the case is this, that the morals of these parishes were such 
 ' as they were forbidden by common decency to describe.' 
 
 One more instance : — 
 
 ' The Commissioners of Education have reported on 
 ' the Canterbury charities, and among them is one called 
 ' Lovejoy's Charity part of which is directed to be ap- 
 ' plied to poor ancient and sick people not receiving 
 ' parochial relief. There were 500 persons receiving 
 ' relief from this charity ; and as to 113 of these the 
 ' Commissioners could obtain no information, but of the 
 ' remainder there are 145 of whom they give the follow- 
 ' ing account : — There are 5i persons in good employ- 
 ' ment not needing relief ; 36 paupers who by the
 
 32 CHARACTERISTICS OF 
 
 ' foundation are expressly and specially excluded from 
 'any such aid; 18 occasional paupers; 18 drunkards; 
 ' 17 bad characters ; 4 brothel-keepers ; and one con- 
 ' victed felon.' 
 
 I will only add that the same story is told from hun- 
 dreds of places where the same mischief is working in 
 the same shape. On this point I speak to an audience 
 who, whether they agree or no, at least appreciate what 
 I say, for it is usually the parson of the parish who is 
 the most forward to complain of the evil effects of the 
 dole charities. 
 
 But of the greater Foundations, will anybody confi- 
 dently assert that they produce more good than evil ? I 
 will not dwell on the great almshouses, such as St. Cross 
 which has been a stone of offence perhaps from its 
 Founder's days certainly from those of Wilham Wyke- 
 ham until now. Take the Foundations for objects we 
 should all approve — for learning, and for the tending of 
 the sick. Has the state of the great endowed hospitals 
 of London been always satisfactory? Has for instance 
 that of Bethlehem ? We all know the contrary. Turgot 
 cites the hospitals of the sick as among the most striking 
 instances of the deadness of Foundations. Will any con- 
 temporary of mine at Eton assert that the then state of 
 the College was useful or edifying ? Will any contem- 
 porary of mine at Oxford say that the foundations of 
 Merton or Waynflete or Chichele were then playing their 
 part in the world P There may be times of awakened con- 
 science and active exertion, but the question is whether 
 rich Foundations derived from private origin do not in- 
 variably gravitate towards sloth and indolence.^ It is 
 difficult to point to one instance of a private endowment 
 for learning achieving great results by itself alone.
 
 CHARITABLE FOUXDATIONS IX ENGLAND. 33 
 
 Where siicli results liavo l)een acliieved, wlictlicr on a 
 small scale or a great, whether in a rural school or in 
 Eton or Trinity College, it has been by superadding a 
 vohuitary or unendowed department, rising and falhng 
 w^ith pubUc estimation, and lying open to all the influ- 
 ences which excite hope or fear, which animate the 
 zealous or rouse the apiithetic. 
 
 It may be that Private Endowments were useful in the i^^^^sibie 
 
 11 (,. utility of 
 
 tmies when they Avere first devised. Like Monasteries private 
 and Trade Guilds, they may have been the hard shell pro- tionsin' 
 tecting a kernel of great virtue destined one day to ger- t-'mes' 
 minate into life and shatter its protector into^ fragments. 
 It may be so, though except as to institutions for learning 
 or religion it is not easy to think that it was so. To But they 
 me it seems that in this matter of Charitable Foundations JXer to 
 we are reaping sim])ly as we have sown. We have com- havean- 
 
 ^ "- ^ '' swered the 
 
 mitted a vast power to fortuitous and irresponsible hands ; expecta- 
 and they have used it according to the measure of their m'iSiUiave 
 L^oodness and their wisdom. It is difficult for the wisest formed of 
 and the most patriotic m.an- to see clearly the needs of *^'^"'- 
 the age he lives in. We have said that any man, how- 
 ever selfish or stupid, may assume to foresee the needs of 
 all future time. It is much to permit that anyone should 
 force his countrymen to take on his own terms wealth 
 of which he denudes himself. We have said that he may 
 force them so to take wealth of which he only deprives 
 others. What wonder if there is poverty of result from 
 acts for the performance of which we require neither 
 wisdom nor public spirit nor self-denial. If the plans of 
 our noblest spirits, our Mertons and Wykehams and 
 Colets, are found unsuitable as time runs on, what are we 
 to expect from the easy and self-complacent spirit of the 
 ordinary testator ? 
 
 But some will say, Would you have no Foundations? oi^Sl 
 
 D
 
 o4 CHARACTERISTICS OF 
 
 that tiie ^i|} i^Qi^ jQ^^j. reasoninG^ apply even to the endowments 
 
 argument *' o i i »/ 
 
 would ap- of the Church ? and are you prepared to aijply it so 
 
 plvtothe . -n n J i i li J 
 
 Church. universaUy .^ 
 
 Distinction My answcr is this. I am not croinrr to travel into the 
 
 between \ ? 
 
 national qucstion SO ably handled the other niglit by the Dean of 
 Founda-* ^ Westminster.^ On this occasion I assume that an en- 
 ^"" ^- dowed national Churcli is a good thing. Let our other 
 foundations become national also, and they may become 
 good things. You have heard me again and again during 
 tliis lecture use th5 terms 'Private foundations' or ' Private 
 Endowments.' It- is tliose alone of which I have been 
 speaking. The vice of them is that they continue to be 
 governed by the ideas of men who knew nothing of either 
 tlie knowledge or the wants of our age, even if they did 
 of their own. If tlie endowments of the Church were now 
 lield upon trust to propagate the views whicli prevailed 
 six eight or ten centuries ago ; if some strong external 
 power had interposed to keep the beliefs and the know- 
 ledge of the Clergy from change and at the same time to 
 })reserve their possessions from the fate which h^is over- 
 taken monastic possessions in this country and ecclesias- 
 tical possessions in other countries, then I say without 
 liesitation that such an establishment as that would be no 
 blessing but a curse and a bhght upon the nation. There 
 have been many and there still are some who wish to 
 persuade us that the Church (meaning the body of Clergy) 
 is a sort of corporation possessing inalienable and inde- 
 feasible rights to certain property. Such a doctrine seems 
 to me to have no more foundation in law or in history 
 than it has in natural right or in policy. At every crisis 
 of change in this country the principle that Church en- 
 dowments are national property has been asserted in un- 
 
 1 Note P, p. 40.
 
 CHARITABLE FOUNDATIONS IX ENGLAND. 35 
 
 mistakable terms. The Eomanists found it so at tlie 
 Reformation, tlie Episcopalians at the Great Eebellion, the 
 Presbyterians and Independents at the Restoration, the 
 Nonjurors and Scotch Episcopalians at the Revolution ; 
 and it seems not unlikely that the present generation may 
 see the same principle applied to the Irish Church.^ You 
 hold your property by the most secure and honourable 
 tenure. It is because it is national property and is ope- 
 rated on and moulded from time to time by the national 
 will, and is held to support public officers holding a definite 
 and important legal position and so kept in sympathy 
 with the heart of the nation, that it is still preserved as 
 a valuable possession and prized by many of the most 
 diverse thinkers of the day. 
 
 And so with Private Foundations ; if they are made really Private 
 
 n • -r. -^ 1 Foimda- 
 
 national they may become really precious. But if they tions nmst 
 are left to be the sport of 40,000 chance-medley wills ; if nadonai if 
 they are applied not to meet the real needs of society but Jlg^eno- ^" 
 with superstitious regard to the behests of the dead, they ^'-''•'^^ 
 can hardly fail to share the fate of all institutions which 
 have ceased to benefit mankind and are of sufficient im- 
 portance to attract cupidity or to provoke enmity. I be- 
 lieve that they are destined for improvement and not for 
 destruction. The course taken by the Legislature with 
 respect to colleges at Oxford and Cambridge and to Pub- 
 lic Schools, and the growing desire to inquire into the 
 position of the Charitable Foundations, give hope that 
 when the subject has been sufficiently studied and dis- 
 cussed improvement will not be long in coming. 
 
 And now, gentlemen, I have nearly done. It would be r^emarks 
 
 . 1 • 1 • 1 . . <^" modes 
 
 interesting enough to discuss the modes m which existing ofimprovc- 
 funds should be applied, and by what machinery it should 
 
 ' Note Q, p. 40. 
 1^ 2 
 
 ineiit.
 
 36 CHARACTERISTICS OF 
 
 be done. But each of these subjects would occupy a 
 whole lecture to itself. I will only say here that I am 
 not for any system of rigid centralization. I do not think 
 it well to put all Charities into a melting-pot in order to 
 pour them out again into a quantity of moulds of one 
 pattern. I do tlnnk it absolutely essential to their well 
 Avorking that large discretion should be confided to the 
 local trustees : I think that people must be persuaded or 
 convinced not driven into improvement ; that the greatest 
 caution should be used in ascertaining the Avants and the 
 greatest tenderness in consulting the feelings of those who 
 are interested in and affected by the various properties ; 
 that the greatest patience and forbearance is required in 
 waiting for the opportunities of improvement ; that in 
 short it is hardly possible to apply too carefully, as it is 
 not possible to grasp too tenaciously, tlie principle that 
 Property is not the Property of the Dead but of the Living. 
 Tliis is the principle which underlies the whole of my 
 address to you and to the proof or illustration of which I 
 have confined myself. I know that many will disagree 
 with me. Some will think me foolish and some wicked. 
 But the subject is not unimportant. According as these 
 properties are administered with regard to real utility or 
 with regard to objects that are fanciful or obsolete, the 
 welfare of tens of thousands of human beings is affected 
 for good or for evil. And if what I have said incites any 
 one to pay more attention to the subject or helps him to 
 think about it with more precision it will be enough.^ 
 
 » Note B, p. 40.
 
 CHARITABUli FOU.NDATIOXS IN ENGLAND. 37 
 
 NOTES. 
 
 Note A, p. 3. 
 
 For obvious reasons I take a purely fictitious locality. But 
 the supposed case is not by any means without its prototypes. 
 
 Note B, p. 4. 
 
 This is not quite accurate. There is one class of gifts (I do 
 not recollect any other) which does not fall within this defini- 
 tion. The Court of Chancery holds that gifts for the perpetual 
 benefit of the donor's poor relations are charitable and there- 
 fore valid. How the Court came so to decide it is difficult to 
 understand. It has thereby established perpetual entails in 
 private families of the very worst and most demoralising kind. 
 Fortunately there are not many of such gifts. 
 
 Note C, p. 4. 
 
 This again is not quite accurate. There are modes of giving 
 property to public purposes, e.g. church purposes, by which it 
 becomes vested in a public official, as a rector, and subject to a 
 different jurisdiction. For a charity proper it is essential that 
 there should be private administrators bound to act accordino- to 
 the private and separate law of their own Foundation. 
 
 Note D, p. 7. 
 The rent was 112/. 13s. 4:d. at the foundation. Eents now, 
 32 13/. 13s., besides 14,340/. 19s. 6d. Consols arising from sales. 
 
 Note E, p. 7. 
 
 Since this lecture was delivered a gentleman from Wood- 
 bridge the town in question has been with me complaining 
 that the doles are demoralising the place. Now these doles are
 
 38 CHARACTERISTICS OF 
 
 the surplus which remains after a liberal maintenance of the 
 almshouse, and after the maintenance of a school established by 
 decree of the Court of Chancery. The administration of the 
 funds forms the subject of constant and sharp contentions. 
 
 Note F, p. 7. 
 
 The trustees contributed 251. to the sufferers by the explosion ; 
 and for this they were advised that it was prudent to obtain the 
 sanction of the Charity Commissioners. It was doubted whether 
 they could otherwise safely give it. 
 
 Note G, p. 8. 
 
 In the Levitical law wills find no place ; there are none among 
 the Hindoos ; they existed to a very slight extent among the 
 Greeks ; with the Eomans who developed the power and from 
 wdiom doubtless Western Europe has derived it it was of slow and 
 gradual growth. In Mr. Maine's admirable work on 'Ancient 
 Law' to which I have been much indebted both for thoughts 
 and for information he says, p. 196 : ' As to the wills which are 
 sanctioned by the bodies of law, which have descended to us as 
 the codes of the barbaric conquerors of imperial Rome, they are 
 almost certainly Roman. The most penetrating German criti- 
 cism has recently been directed to these leges barbarorum, the 
 great object of investigation being to detach those portions of 
 each system which formed the customs of the tribe in its 
 original home from the adventitious ingredients which were 
 borrowed from the laws of the Romans. In the course of the 
 process one result has invariably disclosed itself — that the ancieyit 
 nucleus of a code contains no trace of a ivill. Whatever testa- 
 mentary law exists has been taken from Roman jurisprudence. 
 The Celtic nations were certainly not more advanced in this 
 respect than the Germanic. Real property would rather seem 
 to have belonged to the sept or clan and to have been incapable 
 of alienation. 
 
 Note H, p. 18. 
 
 It will be observed that I have omitted the properties of 
 municipal corporations. I did it designedly and for brevity's 
 sake. Its position and liistory is peculiar and would require
 
 CHAKITABLE FOUNDATIONS IN ENGLAND. 39 
 
 much time to explain accm-ately. Its bulk was not such as to 
 make its omission a matter of great moment ia such a sketch as 
 this. But it illustrates my general moral as well the properties 
 settled to the use of private families or of religious bodies. 
 Until the passing of the 3Iunicipal Corporation Act property 
 vested in municipal corporations from whatever source derived 
 was looked on as their own and they could alien it as they 
 pleased. But in 1835 they were practically turned into trus- 
 tees for the benefit of their towns — another assertion of the 
 priuciple that property in mortmain is liable to be treated as 
 puhlici juris and be dealt with for the good of the nation. 
 
 XoTE I, p. 18. 
 
 I have followed Mr. Hallam in sayiug this. I do not know to 
 what councils he refers. The only English decree resembling 
 this which I have come across is one of Archbishop Stratford 
 passed in 13-12. See Lyndewode's Provinciale, p. 171. 
 
 XoTE J, p. 21. 
 H. C. H. vol i. pp. 108, 109. 
 
 Note K, p. 22. 
 
 But it is in favour of Hallam's view that there was a similar 
 current of legislation in France at the same time. 
 
 Note L, p. 25. 
 
 I am of course aware that the deservedly high authority ot 
 Mr. Jarman may be cited for the contrary proposition. He 
 thinks that the statute of 1736 has been unduly favoured by the 
 judges, and his opinion is constantly quoted by those who favour 
 charitable gifts. It was much used before the Parliamentary 
 Committee on this subject who reported in the year 1844. I 
 think he is in error and that one source of his error is apparent 
 enough. It seems to me that there is only one class of cases — 
 those relating to the marshalling of assets — in which the statute 
 has been strained against charitable gifts ; while there are 
 several in which it has been unduly restricted in their favour.
 
 40 CHARITABLE FOUNDATIONS IN ENGLAND. 
 
 Note M, p. 26. 
 The Court said that the intent of the statute of charitable 
 uses was ' to make the disposition of the 'party as free and easy 
 as his mind.' — Attorney -General v. Rye, 2 Ver. 453. 
 
 Note N, p. 26. 
 I take this from a vahiable little pamphlet on the Charitable 
 Trusts Acts, published by Mr. Fearon the solicitor of the 
 Attorney-G-eneral. 
 
 Note 0, p. 30. 
 Mr. Gladstone's generosity being- greater than his technical 
 knowledge of law has misled him in this instance. The clause 
 in question probably proceeded as much from Jar vis as tlie 
 general words in a conveyance proceed from the vendor. It is 
 a common clause invented by conveyancers to avoid the rocks 
 and shoals of the statute of 1736, and was doubtless inserted 
 by the draughtsman as a matter of course. 
 
 Note P, p. 34. 
 This refers to a lecture delivered in the same place a few 
 weeks previously by Dean Stanley on the ^ Connection of 
 Church and State.' It has since been published. 
 
 Note Q, p. 35. 
 
 Since this was written there have been very significant utter- 
 ances on this matter. 
 
 Note E, p. 36. 
 
 Since the composition of the above lecture the Eeport of the 
 Schools' Commission has appeared. It is a most able and com- 
 prehensive survey of the subject, replete with interest and 
 instruction. At some points it touches on Charitable P^ounda- 
 tions, and though it deals witli the best class of them, those for 
 Education, it insists on the same necessity for radical reforms 
 which I venture to advocate. See in particular pp. 469-472, 
 624-626. 
 
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