APPENDIX TO REPORT.
Notes on Legal Points connected with the Inquiry, viz.,—(1) the general law as to the
charters of the Companies; (2) the effect, if any, on the legal position of the Companies
should they prove to be guilds by prescription; (3) the effects which would follow from the
cancellation (hypothetical) of the Companies' charters; (4) the law as laid down and acted on
in Brown v. Dale (fn. 1) with reference to the power of such bodies to dissolve and divide;
(5) the application, according to the law of trusts, of the increment of the Companies' rents
derived from their City house-property; (6) the operation of the doctrine of cy-près; (7) the
right of the State to interfere.
A case was laid before Mr. Horace Davey, Q.C., M.P., and Mr. F. Vaughan Hawkins,
barrister-at-law, consisting of the two above-mentioned documents prepared in the
office of the Commission, viz., (1) the Preliminary Report, ( (fn. 2) ) which was drawn up before
the returns were received; (2) the "Abstracts and Tables, with a Preface," which
were drawn up after the returns had been received. (fn. 3)
These reports contained (1) a sketch of the history of the Companies of London,
similar to that which forms a part of the foregoing report; (2) suggestions as to the
above points; (3) abstracts of the reports of the Inspectors of Charities, with an
account of the informations filed in Chancery by the Attorney-General against the
The attention of counsel was also directed to the questions put by the Lord Chief
Justice of England to Mr. Longley (questions 350–359) with reference to the legal
effect of the charters.
The following were the questions asked:—
(1.) Having regard to the facts above stated, and with special reference to the
suggestion that the parts of the Companies' charters and byelaws which
purport to create monopolies or to grant powers of search are respectively
illegal and void, would it be possible to cancel the charters of the Companies
by legal process ? Are not the void franchises separable at law ?
(2.) It has been suggested to us that the Companies, notwithstanding their incorporation by charters, are guilds by prescription, and therefore impossible to
dissolve by legal process ? Is this a tenable hypothesis ?
(3.) What would be the legal effect of the cancellation (hypothetical) of the charters
of the Companies as regards their corporate and trust property, real and
(4.) Is there anything to prevent the Companies of London from dissolving and
dividing as in Brown v. Dale ? ( (fn. 4) )
(5.) What is the present state of the law of trusts as regards the real property of the
Companies which is held subject to charitable rentcharges ? Did not the
decision in Attorney-General v. Waxchandlers' Company ( (fn. 5) ) practically alter
the law ?
(6.) What is the state of the law as regards cy-près modifications of obselete trusts;
and are its results, in your opinion, satisfactory or otherwise ?
(7.) Having regard to the facts stated in the accompanying reports, will Her
Majesty's Commissioners, in your opinion, be justified in recommending that
the State should assume control of the property and expenditure of the
Companies to any, and what, extent ?
Answer of Mr. Davey.
To Question 1. I am of opinion that it would not be possible to cancel the Companies'
charters by legal process.
i. No doubt all franchises are granted upon conditions that should be duly executed
according to the charter which settles the constitution, and if the Corporation fail to
perform the terms of the patent, in the way either of misuser or abuser or non-user, it
may be revoked by sci. fa.
(fn. 6) Vanacre's case (11 Will. III.), 1 Ld. Raym, 496, and see Year Books,
4 Ed. IV. 5.
(fn. 7) Rex v. City of London (3 W. & M.), Skin. 310, 4 Mod. 55.
But I think that under the circumstances, and having regard to the dates at which
the most modern charters are granted, it would be held that the trade franchises, &c.,
were separable, and although these might be void or capable of being seized by the
Crown in an action of Quo warranto, the non-user of them would not avoid the charters
It will be observed that there is no case in fact of the grant being on a false
suggestion, and it might well be held that the grant of these franchises, which were
known to be obsolete and incapable of being enforced or exercised, did not enter into
The legal authorities are not very clear, but it seems that a charter may be repealed
in part where no false suggestion is mingled with the consideration for granting the
charter, and the clauses to be repealed are substantive and independent clauses, and do
not influence and affect the whole of the charter.
(fn. 8) Lord Mulgrave v. Mounson, Freem. 17.
(fn. 9) Sackville Coll. case, T. Raym. 177.
ii. If it were sought to avoid the charter, &c., on the ground of the illegality of the
provisions, and their prejudice to the subject, I apprehend that although sci. fa. is a
writ of right where a charter operates to a subject's prejudice, an action by a private
prosecutor would not under existing circumstances be entertained.
To Question 2. Prescription is only another name for a lost grant. If there be an
existing charter creating the corporation the fiction of the lost grant would be excluded,
or the surrender of a previously existing charter would be presumed.
If the earliest charter known be an inspeximus charter, or charter of confirmation,
a previous lost charter would be presumed, but it would, I should think, be held that
it was in the terms of the charter of inspeximus or confirmation.
It is said that the proper mode of proceeding against a corporation by prescription
is by Quo warranto.
To Question 3. Their corporate real property would, it is said, re-vest in the donors
or their heirs.
Co. Lit. 13 b.
(fn. 10) Corp. Colchester v. Ashurst, 7 Q.B. 385,
though I should have thought the better opinion was that it would escheat to the
Crown, as Lord Hale seems to have thought. 2 Bacon, Abr. 287.
The personal property would go to the Crown as bona vacantia.
The legal estate in lands held by the Company on charitable trusts would either vest
in the heirs of the original donor or escheat to the Crown, but the charitable uses
would, even in the latter case, probably be held to be saved by Stat. of Charitable
Uses, 43 Eliz. c. 1. s. 7.
If the property of the Company is vested in trustees in trust for the Company, it
would on a dissolution vest beneficially in the trustees; and as regards property vested
in trustees upon any charitable trust, the dissolution of the corporation would not
affect the title legal or equitable.
To Question 4. I agree with the decision in Brown v. Dale. The Court of Chancery
has no jurisdiction to restrain alienation of corporate property by the members of
a corporation created by charter, unless the property is subject to a trust.
(fn. 11) Corporation of Colchester v. Lowton, 1 V. and B. 226, overruling dictum in
Rex v. Watson, 2 T. R., 199, 200.
See the following extract from Lord Eldon's judgment, p. 244.
"The relief now to be asked must therefore be upon quite a different principle, and
though all the authorities upon what is not often the subject of consideration here
have been most usefully brought forward, I have no doubt that independent of positive
law as to the legal powers of a corporation, corporations, civil, ecclesiastical, or of
whatever nature could in point of law alienate lands of which they were seised in fee,
and the history of what corporations both aggregate and sole did before the restraining
statutes is very useful. Civil corporations are at this day in the constant habit of
making those alienations their title to make which is asserted by Lord Coke. In the
course of my experience in this Court, of my present researches, and of my examination
of authorities, which having had occasion to consider them formerly this cause has
brought back to my recollection, nothing has occurred showing that there ever was
a case in which this Court attached the doctrine of trust as applied under the words
"corporate purposes" to the alienation of a civil or indeed of an ecclesiastical corporation. With regard to what was stated by Sir William Ashurst, a very respectable
judge, and who I take this opportunity of saying was a very useful judge as a
Commissioner in this Court, I do not lay down either that this is the subject of jurisdiction here as trust or of information in the Court of King's Bench. The opinion
that this Court has jurisdiction is to be considered as the opinion not only of Sir
William Ashurst, but of the whole Court of King's Bench, stopping upon that ground
the argument upon the point as to the breach of trust. Sir Samuel Romilly has put
it fairly that the Court is not to act upon the supposition that corporations are
constantly abusing their duty by applying the property not to corporate purposes;
but on the other hand, when a case is brought forward the Court is not to shut its
eyes against the practice that has prevailed in all times, and the judgment upon it
for speaking of corporate purposes though the most worthy that can be represented
has not that character, the use of the seal is equally improper and as much an abuse
in a court of justice though not in moral consideration. As to what obtains for
instance in the ecclesiastical bodies that have been mentioned, the bishop, the dean and
chapter, &c., the statutes that leases for more than 21 years, or three lives, and not
at the old rent or more shall be bad do not say that any lease shall be good which
can be taken to be an abuse of those corporate purposes for which the property was
held, and I apprehend that it would not be difficult now to find bishops' estates the old
rent reserved being 50l., and the actual estate worth 1,000l. or 2,000l. per annum.
All the excess of that rent taken by the bishop himself, should, if he is a trustee, in a
fair sense be taken from him by this Court, yet no such attempt was ever made where
the corporation was not holding for charitable purposes. Even those corporations can
alienate at law, but the alienee will be a trustee, and the jurisdiction in those cases
must be regarded as a contrast to the other cases of corporations holding not for
charitable but for corporate purposes, demonstrating that this Court shall not be called
upon in the latter case as it is in the former."
There is no distinction at Common Law between one kind of corporation and another.
Every corporation created by charter is a legal persona, and can do whatever it is not
expressly restrained from doing. In this respect it differs from a corporation created
for certain purposes by statute, the powers of which are confined to such as are
expressly or by necessary inference or implication given by the statute. In short,
there is no trust which the Court of Chancery can execute of merely corporate
property as such. But there is a serious question whether a large part of the property
claimed to belong to the Companies is not in fact held upon a charitable trust.
See ex. gr. the charter discussed in the case of Attorney-General v. Fishmongers' Co.
(2 Beav. 588; 3 My. & Cr. 16.)
There are indeed expressions in various cases that corporations hold property and
franchises upon a trust.
See ex. gr.
Per Holt. Rex v. City of London, Skin. 310.
Vanacre's case. 1 Ld. Raym. 496.
Sir James Smith's case. 4 Mod. 53.
But I apprehend that the word trust in not used in these cases in its strict technical
meaning, but in a popular sense, and the only remedy for non-user, abuser, or misuser
of the franchises of a corporation is to repeal the charter, or to seize the franchises.
And there seems to be no remedy for the application of property to non-corporate
purposes, provided the act be the act of the corporation.
To Question 5. I do not think the law was altered by the Wax Chandlers' case.
The law may be simply stated, though the application of it to any particular case
involves questions of difficulty,
(1.) Where the testator or donor apportions the whole income out to various
charities, and by that means exhausts the whole income, the different objects
will take the increased income in the same proportions.
Thetford School case. 8 Co. 131.
(2.) Where specified sums are given to certain charitable purposes, and the residue
is given as such to another charity, or to certain persons, or where lands are
given to feoffees upon trust to pay certain specific sums and the residue is
undisposed of, or lands are given subject to payment of specific sums, the
charitable objects can only have the specific sums and the feoffees or devisees
or residuary cestuisque trust take the whole increase.
Attorney-General v. Dean and Canons of Windsor, 8 H. L. Ca. 369.
South Molton v. Attorney-General. 3 H. L. Ca. 1.
(3.) Where certain specified sums are given to charitable objects, and the residue is
devoted to a purpose which is not for the benefit of the trustees or devisees
but of the persons entitled to the property generally, the charities take the
Attorney-General v. Wax Chandlers' Co. L. R., 6 Eng. & N., App. 1.
Merchant Taylors' Company's case. L. R., 6 Ch. 512.
To Question 6. The Betton Charity Case (reported as Attorney-General v. Ironmongers' Co., 2 My. & R. 576, 586, Cor. Lord Brougham, Cr. and Ph. 208, Cor. Lord
Cottenham) is the strongest instance of the application of the doctrine of cyprès. The
latest case is that of (fn. 12) Campden's Charities, L. R., 18 Ch. D. 310. The principle of
the doctrine is well stated by Lord Westbury (fn. 13) in Clephane v. Lord Provost of
Edinburgh, L. R., 1 H. L. Sc. 417.
A distinction may be made between cases where the Court simply finds a new
means of attaining the old end, ex. gr., substituting technical education for apprenticeship premiums, the old means having become obsolete, and where the end has failed
or the fund has become too large for such application, and the Court apparently
discovers a new end, as in the case of the Betton Charity. But in either case the
Court is professedly carrying out the founder's instructions, and executing the trusts
declared by him as nearly as changes of circumstances will permit.
The question whether the result of the application of the cy-près doctrine is satisfactory or not suggests considerations of importance.
I should in the first place say that in my opinion about one half of the charities of
this country are useless or positively mischievous, and the other half, owing to the want
of organization and combination in their administration, do not produce half the good
results which might be looked for.
I think that the Court of Chancery, as a court of administration, has in framing
schemes dealt with charity property in a wise and liberal spirit, and gone as far in the
application of the cy-près doctrine as could fairly be expected. The Court has always
recognized the effect of changes in the circumstances of the times, and in public
opinion, but still the Court is bound by the founder's will, and even in the most
extreme cases of the application of the cy-près doctrine is, as I have already said,
professedly carrying out the founder's intention. Legislation is necessary for any
radical change in the administration of charities. The legislative changes which I
should recommend are in outline the following:—
(1.) I think that the legal doctrine against perpetuities should be applied in
a modified form to charities. No founder should be allowed to prescribe
for all time the purposes to which his property shall be applied, and thus to
create a perpetuity in the case of charitable trusts which the law does not
permit in the case of any other trusts. I do not mean that the property
should cease to be devoted to charity, but I think that after (say) 50 years,
or at most 100 years, it should be applicable to any charitable purposes,
without regard to those specially prescribed by the founder.
(2.) The Charity Commission should be invested with large judicial as well as
administrative functions, and should be strengthened more particularly on
the judicial side.
(3.) With regard to educational charities in particular, I think that an attempt
should be made to introduce a more systematic management and some unity
of purpose into their administration. In a word, educational charities
generally should be treated as a whole. I ought to say that I do not see
the force of the objection which is frequently urged against the application
of educational endowments in the aid of elementary education on the ground
that to do so is to relieve the ratepayers and not the poor. These charities
are not eleemosynary, and should, I think, be considered public property
devoted to education, and I see no reason why the ratepayers (that is, the
public generally), are not entitled to have the funds so applied, although the
effect may be to relieve them to a certain extent from payment of the school
rate or from the annual grant made by Parliament. I think that a considerable portion of the educational endowments should be applied towards
the maintenance of elementary schools. But the most useful way in which
the State can employ those large funds is as a means of selecting those
children amongst the poorer classes who are likely to profit most by a higher
education, and of giving them that higher education which would otherwise
be beyond their means. This might be accomplished by establishing a system
of exhibitions or scholarships, to be given as the reward of merit in successive public schools, and by establishing public schools of ascending grades
ending in the Universities, through which those children who most distinguish themselves by industry and ability should pass. I am glad to say
that in the schemes which were framed by the Endowed Schools Commissioners and which are now framed by the Charity Commissioners under the
powers of the Endowed Schools Act, this idea has been carried out so far as
their limited powers enabled them to do so.
(4.) With regard to non-educational charities, I should like to see them applied as
far as possible for public purposes which tend to the physical, moral, and
intellectual improvement of the people, but which, from their cost, cannot be
provided by the people for themselves, and for the most part are beyond the
reach of individual charity. I give the following as an illustration only of
what I mean:
(a.) Picture galleries and museums.
(b.) Public libraries.
(c.) Public baths.
(d.) Providing and maintenance of public parks and playgrounds.
(5.) I think that the charities should bear the expenses of the Charity Commission.
To Question 7. In my opinion the Commission will not be justified in recommending
that the corporate property of the Companies should be taken from them by the State.
I think that such an act of the Legislature would be an act of confiscation, and would
not unreasonably shake the confidence of the owners of property in the security of
rights of property. It must be remembered that the estates of these Companies have
been recognised and held by the courts of law to be as much their property, with a
full right of disposition, as the property of individuals. But having regard to the
history of the origin of these Companies, and to the fact that they were established for
the promotion of trade (see Lord Coke in the City of London's case), and for public as
well as private purposes, I see no reason why legislation of a less drastic character
should not be applied to them.
To explain my meaning, I should state what I conceive to have been their ancient
I think that the companies must be considered to have been constituent and integral
parts of the Municipal Corporation of the City of London. This is shown by the facts
(which have been stated); (1) That no person could be a freeman of the City who was
not a member of one of the companies; (2) That the constituency called the Common
Hall which elected, and (I believe) still formally elects, the Lord Mayor, was composed
of the liverymen of the Companies; (3) That liverymen, as such, enjoy the Parliamentary franchise for the City, subject to certain conditions of residence imposed by
statute; (4) That the old mode of raising money in the City was by the Corporation
apportioning the sum required between the Companies, and issuing a precept to the
Companies to raise their quota from their members (see in the Skinners' v. Irish
Society, 12 Cl. & F.)
The nearest analogy to the position of the Companies relatively to the Corporation
appears to me that of the relation between the colleges and the Universities of Oxford
and Cambridge. It may have been an encroachment to confine the freedom of the
City to the members of the Companies (as the like process in the case of the universities undoubtedly was), but it seems to have been acquiesced in and accepted in
It is not for me to suggest the details of any recommendations which the Commission
may think fit to offer to Her Majesty, nor have I sufficient information, nor have I
been able to give sufficient thought to the subject, to enable me to do so; but speaking
generally, I think that these Companies may fairly and properly be called on to make
large annual contributions towards the public, or what, if there were a municipal corporation, I should call the corporate purposes of the whole metropolis. I also think
that a sufficient primâ facie case is made out to justify the Commissioners in recommending that a considerable portion of the property of the Companies should be
declared to be charitable property in addition to such property as is admitted to bear
that character. The lapse of time and loss of title deeds in the Great Fire and otherwise have rendered a strict investigation of the titles of the Companies to their property
impossible, but I think that a definite proportion might be declared to be charitable.
In the meantime, I think the Companies should be restrained from alienating their
property without the consent of the Home Office.
Answer of Mr. Hawkins.
To Question 1. Such parts of the charters as purport to give powers of exclusive
trading (beyond what is justified by City customs), or of search, forfeiture of goods,
&c. are no doubt illegal and void. (fn. 14) Waltham and Austin's case, cited in 8 Coke,
125a; 11 Coke, 86a (fn. 15) ; (fn. 16) Clothworkers' Company of Ipswich's case, Godbolt, 254;
Norris v. Staps, Hobart, 211 (fn. 17) But a charter may be good in part and bad in part
(per C. B. Hale, T. R. 177), and I (fn. 18) think it would be held that the incorporations of
the Companies were separable from the illegal clauses and were valid. So held as to
the East India Company, see E. I. (fn. 19) Company v. Evans, 1 Vern. 305, and the Dyers'
Company, see Callis, 223.
To Question 2. I am not sure whether I understand this question.
The Companies are, I believe, incorporated by known charters, and are not, therefore,
corporations by prescription. They may have some prescriptive rights or privileges
which belonged to them as guilds before incorporation, but their power of holding
property must be derived from the charters. As mere guilds or fraternities they could
not, at any rate, hold land at the present day.
To Question 3. If a corporation be dissolved, (fn. 20) the corporation property not subject
to any trust, so far as it is real estate and vested in the corporation itself (not in trustees),
reverts to the heirs of the grantor, or, failing such, escheats to the Crown, and, so
far as it is personal estate, falls to the Crown as bona vacantia.
But as trusts of land do not escheat, real estate vested in trustees upon trust for a
dissolved corporation would belong not to the Crown, but to the trustees beneficially.
(fn. 21) The corporate property subject to any trust of a charitable or public nature is
not affected by the dissolution of the corporation, save that new trustees would be
The Crown claiming by escheat (as well as the heir of the grantor) would be bound
by the charitable use, under the 43rd Elizabeth c. 4. (Sir F. Moore's Exposition in
Duke's Charitable Uses, pp. 160–162.)
To Question 4. I do not know how a Company incorporated by charter could be
prevented from dividing its assets among the members if they all agreed, unless its
property is subject to a trust.
(fn. 22) But trusts of a very general nature would be enforced by the Court. See (ex. gr.)
Corporation of Limerick v. Attorney-General,
Beattie, 563, s.c. 6 Dow. 136.
Attorney-General v. Carlisle,
2 Sim. 437.
Attorney-General v. Corporation of Shrewsbury,
6 Beav. 220.
Looking to the terms of the early charters of the larger Companies as regards the
powers conferred of holding land in mortmain (so far as I can judge from the extracts
I have seen), it appears to me that they are sufficient to create a charitable trust as
regards the real estate acquired or held under the powers of those charters. (See the
words of the Fishmongers' Charter, Preston's case, 2 Beav. 588, 5 My. and Cr. 16, "in
auxilium sustentationis pauperum hominum et mulierum mysteriæ et communitatis
prædictarum in perpetuum.")
See similar trusts in Skinners', Goldsmiths', Grocers', Vintners', Tallow Chandlers', &c. Charters.
The Mercers' Charter of 17 Rich. II. (1st Rep. 85, 86) is very distinct, and reads like
an incorporation for charitable purposes. The
lands which have been at any time held under the
powers of these charters seem to me, as at present
advised, to be charity property.
N.B.—There was no custom by which the Companies could acquire land except by will.
It would be material to examine in connexion with the charters the deeds and wills
by which the trustees for the Companies (such as Preston in the Fishmongers' case)
dealt with the property vested in them; the Companies probably appropriated to the
purposes mentioned in the charters more land than the
amounts specified therein, and wills devising lands to
the Companies under the custom of London ought also
to be considered in the same connexion, e.g., if a testator
devised land to a Company whose charter was such as
that of the Mercers' of Richard II. it appears to me to
be a question whether that would not be a devise to them for the purposes mentioned
in the charter, i.e., for charitable purposes.
The later licenses are said to be general, but of course a license in mortmain must be distinguished from mere words of incorporation "able and capable in law to hold lands, &c." which are not a license in mortmain. See the Charter of James I. to Leathersellers' Company (Black's History of Leathersellers' Company), after which they are said to have got a liense with difficulty.
In the Fishmongers' Company's cases (fn. 23) (2
Beav. 151, 588, 5 My. and Cr. 16), the effect of
the Charter was not properly brought out. The
suit in Preston's case was based on the mistaken notion that Preston was a benefactor and
not a mere trustee for the Company, and failed
accordingly. But Lord Langdale (2 Beav.
603) admits that the words of the charter and
will are sufficient to create a trust. It was
considered that there was a superstitious use
paramount to the Company's original interest,
which enabled the Crown afterwards to grant
the property free from any trust. Sed qu.
These (Fishmongers') cases (like others of the period 1833–53) show, I think, a leaning of the Courts in favour of the Companies, probably because suits were brought by relators to make costs. The Charity Commission altered this.
As to the large Crown grants by Edward VI.
and James I. to the Companies (see the private
Act of 4 James I., p. 157, of 2 Beavan in Kneseworth's case) it may be true that taken alone
they do not impose trusts which the Court
could enforce; (fn. 24) but looking to the recitals
of the Act of 4 James I. and the return to
Edward VI.'s Commissioners it seems not too
much to say that these grants were made upon
the representation that the income of the lands granted had been in the past wholly
applied to charitable uses, and in the expectation that it would in the future be so
It would require a consecutive examination of the various charters, wills, and deeds
of the Companies and their minutes of court (as it seems to me) in order to judge
what proportion of the corporate property of the Companies is (either by appropriation
or gift) really trust property held for charitable purposes of the kind specified in the
early charters; and probably the Great Fire and other circumstances make the task
practically an impossible one. That some part of it is such, is, I should think, capable
of proof. Looking to the nature of the wills of the pre-Reformation and other donors,
and to the partly charitable object (as I conceive) of these Companies, I should think
the proportion would be a large one, but this is a matter of opinion.
To Question 5. This is a question of interpretation on the language of the instrument of donation.
If the donor gives out of the rents of an estate specific sums (not exhausting the
annual value of the lands at the time of the gift) to charitable uses, and gives the residue
or surplus of the rents to the Company to whom he has devised the legal estate in the
property, or makes no disposition of them, primâ facie the Company would be entitled
to the surplus rents (be they more or less) after payment of the specific sums, and there
would be no proportionate augmentation (or diminution), (fn. 25) A. G. v. Skinners' Company. 2 Russ. 438; (fn. 26) A. G. v. Mayor of Bristol, 2 Jac. & W. 313; Mayor, &c. of
South Molton v. Attorney-General, 5 H. of L. cases, 1 (fn. 27) .
(fn. 28) But it may be inferred from the expressions used (on the principle expounded by
Sir W. Grant in Page v. Leapingwell, 18 Ves. 463) that the donor was contemplating a
certain surplus only, and that the Company and the other objects were intended to take
in certain proportions, and in such a case there would be a proportionate augmentation
(or diminution) (fn. 29) A.-G. v. Drapers' Company,* 4 Beav. 67; (fn. 30) Mercers' Company v.
Atty.-Gen., 2 Bligh N.S. 165.
(fn. 31) The Wax Chandlers' Company case did not really alter the law, though it may
have weakened or destroyed the authority of some doubtful cases belonging to the
1833–53 period, e.g., A.-G. v. Cordwainers' Company, 3 My. & K. 534; A. G. v. Coopers'
Company, 3 Beav. 29; A.-G. v. Grocers' Company, 6 Beav. 526.
To Question 6. I think the doctrine of cy-près ("as near as can be,") fetters the
court, and that the results are not satisfactory.
The strict rules for applying this doctrine, as Lord Cottenham's rule in Ironmongers'
Company case, Cr. & Ph. 208, that you are to look to other charitable gifts in the will
only for the mode of application, and not for the objects, or Lord Eldon's elaborate
scale in A.-G. v. Wansey, 15 Ves. 231 (a gift to two poor Presbyterian boys living in
A. parish, where he held you were to reject (1st), the number; (2), the parish; (3),
the sex; (4), the denomination), are not always observed in practice; still, I think in
most cy-près schemes some beneficial provision is not inserted for fear of not being
quite sufficiently cy-près.
I think the better course would be, to leave the court or body which has to make the
scheme free to make such a scheme as circumstances may require, leaving it to a court
of appeal or to Parliament to reject or correct the scheme, if it considers there has
been an amount of change which is unreasonable.
To Question 7. I should not recommend that the property of any persons should
be taken from them by the State; but the State may perhaps he justified in interfering
where the law is defective, to secure that property shall be applied to the purposes
for which it was really intended.
The objects of the Companies (so far as my information enables me to judge) seem
to me to be partly obsolete, partly of a mixed social and charitable nature, but with
the charitable element predominating, and distinctly impressed on their real estate by
the early charters. The constitution of these bodies descends from a time when public
and private purposes were not perhaps in law quite accurately discriminated. The
titles of and the trusts and obligations affecting their property seem to be so intermixed and complicated that probably no one could say how much of it ought to be
considered as legally trust property; but the great bulk of their acquisitions, both
by will and Crown grant, have, I think, been given to them in their character of
trustees on a large scale for charitable purposes, and, in fact, as a mode of giving to
Then it is suggested that the existing members of these bodies might wind up and
divide the assets between themselves, and they claim the legal right, even if they
disclaim the intention, to do so. Such a claim, I confess, hardly accords with my
sense of justice; and it does not seem to me unreasonable, if, as appears to be the case,
it can be done without injury to the reasonable pecuniary claims of any individual,
that the State should interfere so far as to declare that some proportion (say that
which is now actually applied in charity) of the income and property of these
anomalous semi-charitable incorporations should be considered in law to be property
held for charitable or public uses, and should be applied accordingly, either in promoting technical or other education, or for the general benefit of the inhabitants of the
metropolis, or in some other manner.