charitable commission public statute schools
CHARITIES. There are few features of English society more remarkable than the strength of its charitable organization. It is not merely that the voluntary contributions of individuals to the purposes usually described as charitable are on the largest scale, but that endowments in aid of every variety of public use abound in all parts of the country. These endowments are mostly of private foundation, and but for comparatively recent legislation, would be almost entirely beyond the cognizance or control of the state. So far, indeed, as real property is concerned, the state has for various reasons discouraged its application to such purposes. During the feudal period of English law, the rights of the lords of the soil were continually being invaded by the alienation of land to ecclesiastical corporations. These societies had perpetual succession, whereby the rights of the superior incidental to the tenancy of individuals were destroyed. It was to prevent such alienations that the Mortmain Acts were passed. The statute De Religiosis, 7 Edward 7. st. 2, c. 1, and the statute of Westminster 2d enacted fiat if any body politic, ecclesiastical or lay, sole or aggregate, should buy or sell lands or by any engine of craft appropriate lands in such a way that they should in anywise come into mortmain, the lord of the fee might enter within a year of the alienation, and in default of the tnesne lord, the land should go to the king. The 15 Ric. II. c. 5 extended this statute to all lands, &c., purchased to the use of guilds and fraternities, &c. When testamentary power over freehold lands was established in the reign of Henry VIII., bodies politic and corporate were expressly excepted from the benefit of the statute. Alienations in mortmain, as they were called, were not absolutely void, but voidable only at the option of the intermediate lords or the king, and the licence of the lords and the king con 'armed the alienation. A devise of realty to a corporation was ineffectual, and the land descended to the heir, either for his own use or charged with the trust imposed on it by the intended devise. The preamble to the important statute 43 Eliz. c. 4 gives us au idea of the number and variety of the public objects on which testators and other donors were in the habit of expending their wealth : - "Whereas.land, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, and stocks of money have been heretofore given, limited, appointed, and assigned, as well by the Queen and her progenitors as by sundry other well-disposed persons; some for relief of aged, impotent, and pour people; some for maintenance of sick and maimed soldiers and mariners, schools for learning, for 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 towards relief, stock, or maintenance of houses of correction ; some for marriages of poor maids ; some for supportation, aid, and help for young tradesmen, handicraftsmen, 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, which lands, tenements, &c., have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, &c." The statute gives the Lord Chancellor power to appoint commissioners to inquire into such cases. A charity under the statute has been defined to be a gift to a general public use, which extends to the rich as well as to the poor. By a series of judicial interpretations, the power of devising lands to corporations for charitable uses was established, and the subject of the Mortmain Acts was to a certain extent frustrated.
The Act 9 Geo. II. c. 36 takes notice of the public mischief caused by alienations or dispositions made by languishing or dying persons to uses called charitable uses, to the disherison of their lawful heirs. It is accordingly enacted that no real property, or money to be laid out in the purchase of real property, shall be transferred in any way in trust for the benefit of any charitable use whatsoever, unless such gift be executed by deed at least twelve months before the donor's death, and enrolled in the Court of Chancery within six months of its execution. Gifts to the universities and colleges are excepted under the Act. Gifts to uses which are superstitious within the Acts of Henry VIII. and Edward VI. are still held to be void.
Many Acts have been passed within the present century for the better regulation of charities. The Lord Chancellor was always understood to have a prerogative jurisdiction, as representing the king, who is parens patrice', over these public trusts. The Act of Elizabeth, as we have seen, gave him authority to appoint commissioners of inquiry, and under that Act the Court of Chancery developed some very important doctrines regarding charities. The chancellor's commissions fell into disuse, and it was found more convenient to proceed by way of information on the part of the Attorney-General. It will be easily understood that great abuses must have sprung up under a system of control which was by its very nature casual, litigious, and intermittent. In the case of charitable corporations with visitors of their own, the power of the court to interfere was to a certain extent restricted by the visitatorial jurisdiction. In 1818 began a series of public investigations into charitable funds, which has by no means yet come to an end. At the instance of Lord Brougham, a commission was appointed to inquire into the educational charities, but the universities and large schools were exempted from its operation. A second commission with further powers was appointed under the 59 Geo. III. c. 81, and continued until 1830. Charities under special visitors were still exempted, but this exemption was discontinued when the third commission, under 1 and 2 Will. IV. c. 34, was appointed. In the reports of the commission it is stated that the worst cases of abuse and maladministration were found in charities having special visitors. Grammar schools in that position are described as being especially deplorable. A fourth commission was appointed in 1835. The reports of these various commissions, and of a House of Commons committee on the same subject, called public attention to the abuses of charity administration. After many efforts the Charitable Trusts Act of 1853 was passed. By this and the amending Acts, permanent commissioners were appointed with extensive powers. It is their duty to inquire into the management of charities, and to insist on accounts being laid before them, and they are now enabled to undertake the administrative business in respect of charities which belonged to the Court of Chancery. Contentious business is still remitted into court, but the rest is carried through in the office of the commissioners. In cases requiring such intervention, they send a certificate to the Attorney-General, who takes such proceedings thereon as he may think proper. The universities and their colleges, cathedrals, and generally all charities connected with religious worship, or supported solely by voluntary contributions, are exempted from the jurisdiction of the commissioners. Endowed schools were, by the Endowed Schools Act 1869, handed over to a separate commission, and the powers of the Court of Chancery and Charity Commissioners were restricted with respect to them. More recently the Endowed Schools Commission has been allowed to expire, and its duties have been assigned to the Charity Commission. There are still many charities in England which the powers of the Charity Commissioners do not seem to be able to reach.