MAY, 1862.



In the reign of Queen Elizabeth the subject of Charities attracted more fully than before the attention of the legislature. It was thought expedient to establish a Board of Commissioners for Charitable Uses. The first statute regulating the subject is the thirty-ninth of Elizabeth, chapter six; the second was passed in the forty-third year of the same reign, chapter four. The true office and functions of these statutes was not to create a new authority, but to exercise an already existing jurisdiction in a new manner. This is shown

1. From their terms and phraseology. The first one shows most clearly the intention of the legislature. The preamble recites that charitable gifts, which are enumerated, had been and are still like to be most unlawfully and uncharitably converted to the lucre and gain of some few greedy and covetous persons, contrary to the true intent and meaning of the givers and disposers thereof; the end of the act being that the uses may from henceforth be observed and continued according to their true intent. It is then (385)

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provided, that the Chancellor may award commissions to the bishop of the diocese and other persons with a jury to inquire of such gifts and of the abuses, misdemeanors and frauds which have arisen, &c., so that the intent of the donor cannot be performed. The statute, 43 Elizabeth, is nearly like the first in its phraseology, although the reasons for enacting it are not so distinctly stated. This language is so clear in its meaning that Mr. Boyle says, that the statute professes to be a measure purely remedial, and that it leaves the original jurisdiction of the Court of Chancery as before.1

2. The subjects embraced within the statute lead to the same conclusion. Corporate foundations, as well as those which are unincorporated, legal gifts, as well as those which are equitable, are provided for. Thus a statute passed in the eighteenth year of Queen Elizabeth's reign' had exempted all manner of conveyances to the use of the poor from the statutes of mortmain, and had expressly enacted that it should be lawful to give to any person or corporation for their benefit, and yet the poor are mentioned in these acts in the same connection with other gifts and appointments of a charitable nature. These statutes apparently establish a power of visitation. There is no word or line in them which purports to create a new capacity to take property. When the legislature intended to give capacity they knew how to express themselves, as will be seen in the 18th Elizabeth just cited, ex plained by an act passed in the 39th Elizabeth, c. 5, immediately preceding one of those in question.

3. The decisions of the courts sustain this view. "Thus," says Duke, "the Commissioners cannot by their decree make a corporation not before incorporated, and enable them to take charitable uses as a corporation." They may, however, cause trustees to convey, from time to time, so as to keep up the number originally appointed. This, as has been seen, could have been done by the Court of Chancery without reference to the statute.3 It is true

1 Boyle on Charities, p. 12.
218 Elizabeth, c. 3, § 9.

3 Arnold vs. Barker, supra, p. 339.

that an unwarrantable extent was given to uses defectively created in point of form. This was through a forced construction of the words "given, limited, appointed, and assigned," employed in the statute in respect to the methods in which charities were created, and especially of the word "limited." The word "limited" enlarged the power of disposition,' and the statute of wills, as well as of mortmain, was, pro tanto, repealed or modified. But no statement is to be found that a new capacity to take property was created in the devise beyond modifying the restrictions of those statutes. No decision, it is believed, can be found, where the Commissioners were held to have acquired a power to establish a use which, before the statute of charities, by the general rules of equity jurisprudence would have been intrinsically void, nor does any case adjudged by the Commissioners go farther than Symond's case, before noticed. Many defective methods of raising a valid use were, however, sanctioned. The peculiar cases arising under this statute were of this class. Damus' case was a will of personal property made by a married woman, who was administratrix. The will was void at law, because a married woman cannot make a will, but good by the statute of charities. It was her duty, as administratrix, to appropriate the property to pious uses. Collison's case was a will made seven years before the statute of wills, to a charitable use. It was held to be a good "limitation" under the statute of charitable uses. Many similar cases might be cited. On the question of capacity of unincorporated persons to take a charitable use, as devisees, the decisions do not appear to be different after the statute from those made before.


4. A similar conclusion may be derived from the nature of the Commissioners' authority. Matters appear to have come before the Chancellor, to have been in part disposed of by him, and then to have been referred to the Commissioners. They were not an independent tribunal. It is true they could make a decree, but could not enforce it if it were disobeyed. They must call on the

1 Boyle on Charities, p. 18.
P. 339, supra.

3 Sir F. Moor's Reports, p. 822.

4 Moor's Rep. p. 888.

5 Duke on Charitable Uses, 50.

Chancellor to imprison the recusant party.' If they issued a summons to a party, and he refused to attend, they certified the fact to the Lord Chancellor. This functionary expressly declared in one case, as a reason why the party should appear before them, that otherwise the breach of trust would go unpunished, unless in Chancery, which were a tedious and chargeable suit for poor persons.' The object of the commission, probably, was to save expense by causing a summary inquiry to be made with a jury in the counties where the property given to charities was situated. It proved to be a piece of cumbrous machinery, and soon fell into disuse.

5. It was wholly in the discretion of the Chancellor to do what he saw fit in respect to their decrees. "Thus," says Moore, "it is in the breast of the Chancellor to award the commissions, or to confirm or annul the decrees, by which he can prevent or avoid their multiplicity perfectly well." It will be remembered that Moore penned the statute of charities.3


6. Shortly before the time of Queen Elizabeth it had been customary for the crown to issue special commissions to hear equity This practice, originating in the reign of Henry VIII., was greatly resorted to at the close of the Queen's reign, on account of the illness of the Master of the Rolls, and the pressing nature of the Lord Chancellor's engagements. The Chancellor himself made similar delegations of authority, which were greatly complained of, and were the subject of a statute. These were only delegations of cases which the Chancellor could have heard if he had seen fit. The statute commission of 43 Elizabeth is thus readily accounted for. It would have been simply impossible for the Chancellor to have heard the cases in the respective counties, and on so important a subject it was desirable that a commission should have the sanction of a statute. Besides, as the inquiry was to be by jury, legislation was absolutely essential.

For these reasons, among others, it is submitted that there is no reason to believe that the law of charities rests upon the statute of Elizabeth.

1 Duke on Charitable Uses, 158.

2 Duke 69, 5 Car. I. Original edition.

3 Rivett's Case, Moore's R. 890.

4 Hargrave, Law Tracts, 310.

Informations in Chancery.

The question whether an indefinite charitable gift could have been enforced prior to the 43d Elizabeth by means of an information filed in Chancery by the Attorney-General, has elicited much discussion. This question is important in its bearing upon charitable gifts which were not valid at law. There is some direct evidence that such a proceeding was adopted. Probabilities are also in its favor. The reasons for this conclusion are,

I. Informations by a public officer were proper proceedings in Chancery long before the statute of Elizabeth. This might be inferred from the general analogies to be derived from proceedings in other courts, and can be shown by authority. Thus, in the Year Book, 1 H. VII., 18, it is said, that in certain cases, when a trespass is committed and an information is made in Chancery, a writ will issue for the farmer of the King and thus he will have the assistance of the King.

So in another case,' the Attorney of the King asked the Court to establish, by "mere surmise," the right of the King against one who was claimed to be seised to his use. It was urged in opposition, that the King should have his remedy by subpoena and not in this manner. The Chancellor agreed with this view, and said that, as the matter touched the Commonwealth of the realm for all time to come, a subpoena was necessary. The AttorneyGeneral must have proceeded in such a case by an information.

In fact, at the close of the reign of Queen Elizabeth, informations had become so common that it was necessary to make a publie statement that they did not abate by her death. All the Judges resolved that informations for the Queen in any "Latin Court," should not abate, but should be continued, and that all informations in the "English Courts" do not abate, because no continuances were necessary. It is superfluous to add that, the "Latin Courts" mean the Common Law Courts, and the "English Courts" embrace the Court of Chancery.

1 Year Book, 4 H. VII. 5, case 10.

2 Moore's Reports, p. 748. Demise le Roy.

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