And an attempt of an outgoing council to anticipate the action of the reformed council, by devoting large sums to Church of England purposes, was held to be illegal.*

46. But the Companies themselves, much to their credit, while claiming unfettered legal ownership, admit that there are moral limits to it. That principle runs throughout their statements. They have constantly acted on it, and for centuries have kept their property without dividing it. Their most eminent supporter, Lord Selborne, says, as quoted above by the Dissentient Commissioners, that their funds are derived from their own subscriptions, and from gifts intended to be for their absolute use. But then the thought inevitably occurs, for whose absolute use?

Those who subscribed

to set the guilds on foot five or six centuries ago, or to repurchase after the confiscation three centuries ago, could not have intended that their successors, many of whom might have purchased a place in the Corporation, should take its property on the plea, however true, that its functions had become obsolete. So we find that Lord Selborne immediately adds: "1 do not think the present generation ought to put those gifts into their pockets," though he emphatically refuses to admit that they are on the footing of public trusts.

47. The matter under discussion will be best illustrated by reference to a concrete instance; and I take Laxton's case for an example. Let us suppose that a motion is made in the Grocers' Company that Laxton's estate be divided among its members. What reason could be given for it? None that I know of, except that Laxton had made the Company legal masters of his property, and had created no trust enforceable in a court of law, other than the charges of £38 a-year. But why had Laxton devised his land to any

:

trustees at all? He himself tells us because he was minded to erect a school and an almshouse. For what did he in his lifetime agree with the Company to let out lands to them? He himself tells us: it was for payment of the stipends of the schoolmaster, usher, and almsmen, and for repairs of the house. There is not a word that I can find in his will, nor in the agreement as he states it, to indicate that he designed any pecuniary benefit to the Company. And yet, because he specified in his will the amounts which at that time he must have considered sufficient for his objects, and because these amounts made up £38 a-year, whereas the rental of his land was found to be £50, and because he said nothing about the balance, the result follows that, three centuries afterwards, the only objects that Laxton appears to have cared for are still to have £38 a-year, and the surplus, between £4,000 and £5,000 a-year, is to be swept off into the general corporate property of the Company.

48. That is the argument on the face of the will against treating + Supra, pars. 35, 36, 37.

* Att.-Gen. v. Aspinall, 2 M. & C., 613.

Laxton's lands as corporate property at all-an argument which, though proved to have been insufficient in a court of law, is, I think, overwhelming in foro conscientiæ. But when we come to the proposal to divide this corporate property among the members of the corporation, we may fairly go behind the will. Why did Laxton choose such trustees for his school and almshouses at Oundle? Can we suppose that it was not the character of the Company that determined his choice ?* His will was made in 1556, while the crisis of the Reformation was still undecided. His foundation has a religious side to it, for the almsmen were to be "beadsmen for him in the said house "-i.e., to pray for his soul. His trustees also had by charter a religious side to their character. They then held by charter, and continued to hold by subsequent charters, important jurisdiction over their ostensible trade. They held a prominent position in the Municipality of what then was by far the most extensive, populous, intelligent, and powerful city in England. Without discussing the present position of the City of London relatively to real London or to the rest of England, or the relative position of the Grocers' Company to the Municipality, and without at all derogating from the honour or dignity of the members of that Company, we may confidently say that the Company does not fill the character for which Laxton chose it, and that if its members were now to take his property to themselves, they would be taking what was put into the legal custody of very different people, between whom and themselves there is but an artificial connection.

49. If then it were possible that such a motion as I have supposed could find acceptance with the Grocers' Company, would it not be an indecent thing and a shock to the conscience? And would it not be thought right that, Law being found deficient, the Legislature should step in to put the law on a juster footing? We know that the supposed division is impossible: the history of the Company and their present language prove it. Claiming to be legal owners in the fullest sense, they admit a moral obligation not to take the corpus of the property for the benefit of their own members. But what an admission that is! Does it not lead to something very like a trusteeship, though not specific enough for a court of law to fasten on it? And how is it reconcilable with the outcry of "oppression or spoliation" raised against a proposal to turn the moral obligation into a legal one?

50. It is true enough that not every moral obligation can be so dealt with, even when it concerns property. All of us are under moral obligations to use our possessions well. But the first obligation of an individual is to use his property to maintain himself, his family, and dependants, and he is the sole judge of the amount required for that, ⚫ I presume he was a member of the Company, but do not find it stated.

and of the objects to which he shall apply any surplus he may have. The obligation here is of a different kind. It is the chief obligation. It applies to the whole property, or at least to a portion capable of being ascertained, in favour of objects capable of being ascertained, by other means than the judgment of the legal owner. It seems to me impossible to say that the Sovereign Power may not rightly and wisely turn the moral but non-legal obligation attaching to Laxton's lands into a legal obligation; just as it performed the same process in the case of the Municipal Corporations.

*

51. On behalf of the Companies, two other pleas are put forward in addition to, or rather in support of, the plea of absolute legal right. One is that after the confiscation of property given to superstitious uses, the Companies purchased it back again; and the other is that after the Fire of London they bore the burden of restoration. The Dissentients say that those who supplied money after the Fire may be regarded as second founders, and that the present income, both corporate and trust, of the Companies is really the interest of the capital which was thus invested. They add: "At the time when the house property of the Companies was rebuilt they had long ceased to have any connection with the trades which they originally to some extent represented, and were precisely what they are nowprivate associations having for their main objects charity and hospitality."

52. As regards the restoration of buildings, this argument seems to me inapplicable. Probably few of such buildings now exist, or would be worth very much if they did. That which gives its enormous value to City land is the situation, and the sites were not destroyed by the Fire. As regards both occurrences, the same considerations apply which have before + been insisted on, viz., that for the present generation to take to itself what was given three or even two centuries ago to the corporation it represents, and has been handed down. ever since, is indecent and wrong, whatever the form of the gift may have been, or whoever may have been the donor. Moreover, I have before shown ‡ that the Companies' connection with trade was not severed so early as the Dissentients think, and that even as late as the Fire, much more at the date of the confiscation, they were widely different in character from what they are now.

53. It is worth while, however, to enquire a little deeper into the circumstances of the repurchase, because there is reason to think that the Guilds got favourable terms from the Crown on the ground that the confiscated lands were applied by them to charitable purposes. Burnet tells us that when the Bill for confiscation was introduced into the House of Lords in 1547, it was opposed both by + Supra, par. 46. Supra, par. 21. § Hist. Reform., vol. ii. p. 94.

* Report, p. 61.

Cranmer and the Popish Bishops from different standpoints. But it passed, and was then opposed in the House of Commons by some burghers, who represented that "their boroughs could not maintain their churches and other public works of the guilds and fraternities if the rents belonging to them were given to the King. The members for Lynn and Coventry "were so active that the whole House was much set against that part of the Bill for the guild lands; therefore those who managed that House for the Court took these off by an assurance that their guild lands should be restored to them; and so they desisted from their opposition, and the Bill passed on the promise given to them, which was afterwards made good by the Protector."

54. This promise did not extend to the City Companies, but it would seem-for the story is not quite clear-that they also asserted, probably with truth, that their lands were applied to charitable uses. In his work on the twelve great Companies, Herbert sets out a document entitled "A particular note of such charitable good uses as are performed by the twelve great Companies of London out of such rents as they purchased of King Edward VI.” I subjoin one of the accounts set out by the Grocers :-*

And Herbert quotes a passage from Strype, who, speaking of these repurchases, says, "which possessions, when they had cleared them again, they employed to good uses, according to the first intent of them, abating the superstition."

55. The lands were reconveyed to the Companies by letters patent in the year 1550. But some doubts were subsequently raised as to the completeness of this conveyance, and the Companies found it worth their while to procure an Act of Parliament in the year 1607. In this Act it is recited that the Companies had enjoyed the lands and "employed them to the comfort of many good subjects, and great relief of the poor, and other good and charitable uses." have not been able to lay hold of complete copies of these documents, but from the quotations given in the present Report and Appendix, and in Mr. Beavan's Report of Kneseworth's case, it * Vol. i. pp. 114, 115.

I

would seem as though the prevailing idea, both with the Crown and the Companies, was that the lands were repurchased for charitable purposes, and had been so employed since the purchase.

56. It is a matter of course to hear in this discussion that if the State interferes with the property of the Company, there is nothing to prevent it from taking away the private property of any private person. That is always said in these cases, as it is indeed sometimes in cases where there is not the smallest ground for contending that the property under consideration is private property. But nobody can suppose that the Legislature will act in this case unless convinced that the Companies are public bodies, and their property, or at least a large part of it, public property. I will quote a few lines from Hallam's remarks on Henry VIII.'s dealings with the monastic lands:

*

"I cannot, until some broad principle is made more obvious than it ever yet has been, do such violence to all common notions on the subject as to attach an equal inviolability to private and corporate property. . . . In estates held as we call it in mortmain there is no intercommunity, no natural privity of interest, between the present possessor and those who may succeed him and as the former cannot have any pretext for complaint if his own rights being preserved, the Legislature should alter the course of transmission after his decease, so neither is any hardship sustained by others unless their succession has been already designated or rendered probable. Corporate property therefore appears to stand on a very different footing from that of private individuals; and while all infringements of the established privileges of the latter are to be sedulously avoided and held justifiable only by the strongest motives of public expediency, we cannot but admit the full right of the Legislature to new mould and regulate the former, in all that does not involve existing interests, upon far slighter reasons of convenience."

The sixty years that have elapsed since Hallam wrote these sentences have not, I believe, weakened the force of opinion in favour of either of his conclusions.† The notions which he found common then are common now. Practically no man is alarmed for private property merely on account of new adjustments of corporate property.

57. Another argument which I believe to be a recent invention, and which at all events has been used ad nauseam of late years, is that interference with endowments will stop gifts to public uses. I have often asked, but have never been told, on what evidence such a suggestion is founded. To me it appears that all probability and all evidence is the other way. I have several times in words and writing during the last fifteen years stated publicly my reasons for so thinking. A few weeks ago I laid them in a very brief shape before the Charitable Trusts Commission, and was glad to find them supported by the latest experience of the Charity Commissioners. *Const. Hist., vol. i. p. 103.

+ Mr. J. S. Mill discusses the question with greater fullness and admirable lucidity, and with the same general conclusions.—Dissertations, vol. i. p. 1.

See "Dead Hand," pp. 122, 224.