History of the law of charity, 1532-1827

294 Pages·1969·3.817 MB·English

by  Gareth H Jones

CAMBRIDGE STUDIES
IN ENGLISH LEGAL HISTORY
Edited by
S. J. BAILEY
Fellow of St John's College, Cambridge
and Rouse Ball Professor of English Law Emeritus;
Barrister-at-Law, Inner Temple

HISTORY OF THE
LAW OF CHARITY
1532-1827
BY
GARETH JONES
Fellow of Trinity College and Lecturer in Law in the University of Cambridge;
Barrister-at-Law, Lincoln's Inn
CAMBRIDGE
AT THE UNIVERSITY PRESS
1969
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v
CONTENTS
Preface 1X
List of Abbreviations x
Table of Statutes xiv
Table of Cases XVI
THE DEVELOPMENT OF THE LAW OF CHARITY
1532-1700
1 Introduction: Charity Before the Reformation 3
II The Reformation and the Law of Charity 10
III The Statutes of Charitable Uses: 39 Elizabeth I
c. 6 and 43 Elizabeth I c. 4 16
The common law background 16
The statutes of charitable uses 22
The jurisdiction of the commissioners 26
t
The commission and the hearing 39
11
uz The powers of the commissioners and the
Chancellor 47
iv The achievement of the commissioners 52
IV The Development of the Law of Charity 1545-1700:
A Definition of Charity 57
The Development of the Law of Charity 1545-1700:
v
The Privileges of Charity 59
The perfection of imperfect instruments 60
i Defect of form 60
ii Incapacity at law 65
iii The limits of the Chancellor's indulgence 70
The application of charitable funds cy-pres 72
i Illegal charitable objects 76
ii Indefinite charitable objects 88
The application of surplus funds 91
vi CONTENTS
Limitation 93
The Chancellor would hear charity suits even
though the value of the property was under forty
shillings 94
Suits to enforce legacies to charities were not re-
mitted to the ecclesiastical courts 9 5
Priority over creditors of a bankrupt feoffee to
charitable uses 95
The commissioners for charitable uses were allowed
to decree land to a corporation in esse without danger
of infringing the mortmain statutes 96
Marshalling of assets in favour of charity 96
The restriction of the defence of bona fide purchase 97
THE DEVELOPMENT OF THE LAW OF CHARITY
1700-1827
VI Introduction 105
VII The Mortmain Act, 1736 109
The background to the Act 109
The interpretation of the Act 1 1 3
VIII The Preamble to the Charitable Uses Act, 1601, and
the Definition of Charity 120
IX The Influence of the Mortmain Act, 1736, on the
Definition of Charity 128
x The Development of the Law of Charity 1700-1827:
The Privileges of Charity 134
The perfection of imperfect instruments 135
The application of charitable funds cy-pres 1700-
1827 138
t Initial failure of a charitable object 140
ii The element of general charitable intention 144
The application of surplus funds 153
Marshalling of assets in favour of charity
CONTENTS vii
XI The Enforcement of Charitable Trusts 1700-1827 160
Appendixes
A Bills and Answers in Chancery relating to Charities:
1350-1601 171
B Selected Transcriptions 202
C The Charitable Uses Act, 1597: 39 Elizabeth I c. 6 221
D The Charitable Uses Act, 1601: 43 Elizabeth I c. 4 224
E A Bibliographical note on the Cambridge MS. of
Francis Moore's Reading on the Statute of Charitable
Uses: 43 Elizabeth I c. 4 229
F Francis Moore's Notes and his Speech at the Beginninge 240
G A Case from Francis Moore's Reading 247
H Inquisitions before the Charity Commissioners: 1 597-
1787 251
I Decrees made by the Charity Commissioners: 1597-
1787 255
J The Mortmain Act, 1736: 9 George II c. 36 257
K The Poor Relation Cases 260
Index 263

ix
PREFACE
In this book I have attempted to trace the history of the law of
charity from the fall of Sir Thomas More (1532) to the last year of
Lord Eldon's Chancellorship (1827), by which time the outlines
of the modern law have firmly emerged. Few areas of English law
more vividly illustrate the influence of contemporary forces, and
one of my primary objects has been to trace the impact of social,
economic and religious pressures on the development of the sub­
stantive law, on such questions as the definition of charity and the
scope of the privileges awarded by the Chancellor to the charitable
gift.
In transcribing the primary sources I have not sought to turn
contemporary orthography into modern form, nor have I corrected,
or burnished in translation, Francis Moore's often corrupt law
French. Editorial alterations and emendations have been distin­
guished by square brackets; and abbreviations have generally been
expanded.
Over the years I have received a great deal of help from many
friends. I would particularly like to thank Professors J. P. Dawson,
S. E. Thorne and A. W. Scott of the Harvard Law School, and, in
this Cambridge, Professor S. J. Bailey of St John's College and
Mr D. E. C. Yale of Christ's College, all of whom allowed me to
draw freely on their patience and scholarship. My greatest debt
of gratitude is to my wife who has constantly assisted and encouraged
me when assistance and encouragement have been most needed.
Trinity College, Cambridge GARETH JONES
5 November I968
x
LIST OF ABBREVIATIONS
I. REFERENCES TO RECORDS IN THE PUBLIC RECORD OFFICE,
LONDON
Transcripts and translations of Crown copyright records in the following
classes in the Public Record Office, London, appear by permission of
the Controller of H.M. Stationery Office.
C. I Early Chancery Proceedings: 1350-1558
C. 2/Eliz. & C. 3 Chancery Proceedings: 1558-1601
C. 4-C. IO Chancery Proceedings: 1600-1714
c. 205 Special Commissions in Chancery
c. 33 Chancery Entry Books of Decrees and Orders
S.P. Dom. Calendar of State Papers, Domestic
E. 134 Exchequer Depositions
E. 178 Exchequer Special Commissions
E. 126 Exchequer Entry Books of Decrees and Orders
c. 91 Proceedings of the Commissioners for Charitable
Uses: depositions
exceptions
inquisitions and decrees.
2. REFERENCES TO RECORDS IN THE LIBRARY OF THE HONOURABLE
'
SOCIETY OF LINCOLN S INN
Hale MS. Manuscripts of Sir Mathew Hale (16ocr76), Chief
Justice of the King's Bench.
Hill MS. Manuscripts of George Hill (1716-1808), Sergeant-
at-Law.
Cases in the House of Lords: Arguments of cases before the House of
Lords.
3. REFERENCE TO RECORDS IN THE CAMBRIDGE UNIVERSITY
LIBRARY
Moore Reading on the Statute of Charitable Uses (43 Eliz. I
c. 4), MS. Hh. III 2(c).
4· REFERENCES TO PRINTED SECONDARY SOURCES
Calder I. M. Calder, Activities of the Puritan Faction of the
Church of England (London, 1957).
Co. Inst. Sir Edward Coke, Institutes of the Laws of England,
4 parts (London, 1797).