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be discontinued." In other words, the scholars were (to use the technical phrase) dismissed ; the school broken up; and, since that time, no man had heard any thing of it. Pursuing this hint, we caused the Probate Office to be searched ; and there found a will in 1700, devising a manor, a capital messuage, the tithes of a parish, and the tithes of a hamlet, for the establishment and support of a school. Yet this school had never passed beyond “its probationary state. It is true, that some of those to whom the estate devolved, have lately, as an act of their own charity, founded a small school in their own name. But it is fit that all persons should learn one lesson: When funds are given to the poor, gratitude is due, and, I trust, is always rendered: And then the funds belong to the poor, who are not to be called upon a second time to thank those from whom by piecemeal the same property is again doled out, which had been given entirely, and once for all, above a hundred years ago. I know another instance, in the northern parts of Yorkshire, where, for an income of near 5001. a year, the master teaches four or five scholars, when, within the memory of many now living, the same endowment used to educate forty or fifty.
p. 23-30. After urging the ground for the legislative inquiry which he proposedl, in so remarkable an exhibition of incontrovertible facts, upon which it may be thought that he might with some confidence have rested his case, Mr Brougham goes on to recapitulate and to answer all the objections by which the enemics of the measure had endeavoured to oppose it.
First of all, he states the objection which is drawn from the idea of property; and treats it with a considerable degree of indignation. Under the flimsy pretence,' he says, of great tenderness for the sacred rights of property, I am well aware that the authors of the outcry conceal their own dread of being themselves dragged to light as robbers of the poor; and I will tell those shameless persons, that the doctrine which they promulge, of charitable funds in a trustee's hands being private property, is utterly repugnant to the whole law of England.
It is to be remarked, that a fallacy, grounded upon the importance which ought to be attached to the rights of property, is very apt to be employed to defend and perpetuate the existence of abuses. There is hardly any misapplication of public money, provided the evil has been of some duration, or, in other words, has been carried by accumulation to a certain magnitude, which has not been defended, as if all security of property would be shaken by its redress.
There is no distinction, therefore, which it is of more importance to draw, and to keep firmly in mind, in all our discussions respecting the property of the State, than that which is bere drawn by Mr Breugham, between the property which
individuals hold as their own, and that which they hold, in any shape whatsoever, as trustees for the public. That pro-. perty which a man rightfully holds as his own, is to be maintained for him by all those securities which experience has proved that the good of society requires. But that property which a man receives in trust for the public, is the property, not of him, but of the public; and if he turns it in any degree from the public use, to his own, it is he that is the violator of the rights of property-not the man who endeavours to put an end to his usurpation, and to restore it to the public to whom it belongs. It is a strange doctrine, that the violation of a trust, which is one of the greatest of all wrongs, should be allowed to convert itself into one of the most sacred of all rights. Yet to what an extent is the operation of this fallacy frequently carried? If at any time the public has made any particular application of the public property, which has continued for a series of years, it is very often contended that the public is no longer justified in altering that application. Why? Because the security of property would by that means be shaken. . If the public applies its own property to a good end, after having applied it to a frivolous or a bad one, and thereby lessens the gains of those who have profited by the abuse, this is very often arraigned as an invasion of the right of property, and a prejudice is raised against some of the most salutary operations of the State. It is obvious, on the other hand, that if it is the property of the public, the violation of property is committed by those who are instrumental in turning it from that application, be it what it may, in which it would conduce most effectually to the public good. Mr Brougham shows, that this is not merely a principle founded in reason, and the consideration of moral cquity, but a principle distinctly recognised and sanctioned by the law of England.
• That law regards the inheritance of the poor as matter of public, not of private jurisdiction, and deals with it as it does with the rights of the Crown and the Church. I am anxious to correct, once for all, the misrepresentation of which I now complain ; because it is artfully disseminated with a view to excite prejudices against the proposed measure, by appealing to the very just delicacy that prevails on every thing connected with private rights. I therefore again assert, that a more gross abuse of language never was coinmitted by ignorant or by wilful perversion, than the statement that charitable funds are of a private nature. The Legislature has at all times treated them as public. The 43d of Elizabeth orders Commissions to be issued for examining all abuses of those funds, with powers not merely to inquire, but to reform, by making orders, judgments, and decrees.' Who ever thought of a conmission to investigate or control the ma
nagement of private property ? When a private estate is dilapidated
- when land is let for an elusory rent-when the interests of the remainder-man are in any way sacrificed by the tenant for life-who ever dreamt of allowing any one not interested (except in the case of an infant) to apply for a judicial investigation of the injury? Yet, by the statute of Elizabeth, Commissioners may be sent into any county with powers to impannel a jury, and proceed judicially against all who mismanage or abuse funds destined to charitable uses, without any previous complaint at the instance of any party interested in the property. In like manner, Mr Gilbert's Act requires every person in whose hands any such funds are, whether arising from land or other sources, to return the nature and amount of the estates within three months, on pain of forfeiting one half of the property at the suit of a common informer. The two statutes passed in 1812, proceed upon the same view of the question. By one of them (52 Geo. III. c. 101) a registry of charitable donations is prescribed ; and the other (52 Geo. III. c. 102) gives a remedy for any abuse of them, by petition to a court of equity, which any two persons may present ; a proceeding which has, however, proved most inadequate to the correction of the mischief. Such is the light in which charitable funds have always been regarded by the Legislature, and so little have they ever been considered as private property! But I might appeal to the view which the Common Law takes of them, when it places them, as it were, under the joint protection of the Crown and the community, authorizing the Attorney General to file an information on the relation of any individual, who may state that a charity has been abused.' p. 33-35.
Another objection is, that a remedy for the abuse of charities already exists, namely, in the access which is afforded to the Court of Chancery, by the statute of charitable uses. To this objection, Mr Brougham makes a memorable reply; and draws a picture of this Court of Chancery, which though probably a little highly coloured is still not a little appalling. This picture, coming from so high an authority, both as a lawyer and a statesman, we hope, will make an impression; and lead to those ideas of reform which, in some bosoms, no accumulation of evil seems capable of exciting.
* It has been said, that the statute, of which I have just mentions ed the notable origin, affords a sufficient remedy for the evil. The history of the proceedings under it, affords the best answer to this objection. During the first year after it passed, forty-five Commissions of Charitable Uses were issued. From that time to the year 1643, the returns are defective, the Docket Books in the Crown Office having been destroyed. From 1643 to the Restoration, there were two hundred and ninety-five Commissions. The troubled state of the country during the civil wars having probably occasioned great neglccts and abuses of charities, a considerable increase took place in
the number of Commissions, and no less than three hundred and forty-four were issued, between 1660 and 1678. From that time to 1700, there were one hundred and ninety-seven: from 1700 to 1746, only one hundred and twenty-five: and from thence to the beginning of the present reign no more than three. So that the whole number from 1643 to 1760 was nine hundred and sixty-four. Since the latter period, and indeed for twenty years before, this remedy may be said to have fallen into disuse. There have been only three commissions this reign, and only six in the last 75 years, of which number only one has issued since 1787, when the Committee stated the urgent necessity of investigating charitable abuses. It is hardly needful to show the reasons, why the statutory remedy is inapplicable to the present times, and in itself cumbrous and inefficacious. Suffice it to observe, that it leads him who pursues it, sooner or later into the Court of Chancery; and in truth, as the law now stands, that well known Court is the only refuge of those who complain. See then the relief held out to us by those whe oppose, or threaten to oppose this measure, and who bid us resort to the ancient laws of the land! It is admitted to be true, that glaring abuses everywhere prevail-true, that hardly a parish or a hamlet can be named where complaints are not heard-true, that the highest judicial authority proclaimed the extent of the grievance-true, that a Committee of the House of Commons, thirty years ago, vehemently urged you to afford redress. But your remedy is at hand, say the objectors—what reason have you to complain? is not the Court of Chancery open? Come, all ye who labour under the burthen of fraud or oppression_enter the eternal gates of the Court of Chancery! True the
of the land—the grievance you cemplain of has robbed you of every thing: but, pennyless though you are, you are not remediless you have only to file a bill in equity, and the matter will take its course! Why, if there were nothing in the reality, there is something in the name of the Court of Chancery that appals the imagination, and strikes terror into the unlearned mind. I recollect a saying of a very great man in the Court of King's Bench. The Judge having said of his client, “ Let him go into a Court of Equity,” Mr Erskine answered, in an artless tone of voice, which made Westminster Hall ring with laughter, 6. Would your Lordship send a fellow-creature there? There may be some exaggeration in the alarms created by the bare name of this Court; but, as long as it exists, a barrier is raised against suitors who only seek redress for the poor, though no bars of oak or of iron may shut them out. Yet that the prevailing panic has some little foundation, I will show you by a fact. I have mentioned that only one Commission had issued since 1787, and I am now enabled to state the result of its execution. It was fully executed in 1803; and in 1804, a decree was made, and the Court was petitioned to confirm it. Exceptions were taken as usual. Much and solemn argument was held; and I will venture to say, from what I know of that Court, the VOL. XXX. NO. 60.
case was most learnedly and plentifully debated. In 1808 the matter was deemed ripe for a decision, and since that time it has, to use the technical, but significant expression, stood over for judgment. For ten years it has awaited this final issue ; and during the last four years it has stood at the head of the Lord Chancellor's Paper, first among the causes waiting for judgment. Now, in the language of the profession, “ this is my case. If any one tells me that the Statute of Charitable Uses affords a remedy, I answer, that the grossest abuses being everywhere notorious, the remedy has only thrice been resorted to for above half a century, and only once within the last thirty years; and I bid him look at the fate of that one attempt to obtain justice.'
p. 39–43. There are some minor objections to which Mr Brougham deems it requisite to make an anwer, through which, however, we do not think it necessary to follow him. It satisfies u to have shown, as we think we have done, that Mr Brongham has most completely established his case; first, in proving that the greatest abuses exist; and secondly, in proving that there is no existing remedy for them. The inference, to the minds of all those who have no wish that the abuses should remain, is irresistible,—that inquiry should take place, to lay a foundation for reform.
It is not our intention to enter now into the provisions of the bill which was introduced by Mr Brougham for establishing a board of inquiry, nor into the history of the curtailments which the powers required in it underwent before it was passed into a law. It is necessary, however, to state, that the commissioners who, it was originally proposed, should be chosen by Parliament, are now chosen by the Crown; and their powers of inquiry, instead of being extended to all charitable funds, are confined to those which are destined to the purposes of education. Nor is this limitation the whole; for the 'I'wo Universities, London, Westminster, Eton, Winchester, Charterhouse, Harrow and Rugby schools, and all charitable foundations which have special visitors, are exempted from the inquiry. Finally, the commissioners, even in the narrow circle to which their inquiry is confined, are furnished with no compulsory powers for the attain, ment of evidence. They are only to issue their precept to such persons as they wish to examine, or from whom they desire to be furnished with papers and records; but if any person chuses to disregard this precept, they have no means of enforcing cbedience, they have no penalty to apply,—and the end of their appointment is in that instance defeated. To how great an extent they will meet with these refusals, it is impossible-to fore
But it is abundantly plain, that they will be most likely to meet with them, in those cases in which there is the greatest need