PART III. CHARITY COMMISSION ACTS. INTRODUCTION. It is proposed in this Introduction to trace briefly the history of History of Charity Commissions in England from the time of the Statute Charity Comof Elizabeth (a) to the present day. missions. The Statute of Elizabeth, which has now been repealed by the Stat. of Eliz. Mortmain and Charitable Uses Act, 1888 (b), authorized the Lord Chancellor, or Keeper of the Great Seal (c), and the Chancellor of the Duchy of Lancaster, as regards lands within the County Palatine of Lancaster, to award commissions to the bishop of every diocese, and his chancellor and other persons, authorizing them to inquire by a jury into all abuses, breaches of trusts, negligences, mis-employments, non-employments, frauds, &c., relating to property belonging to charities, and to make orders for their faithful employment, subject to an appeal to the Lord Chancellor, or Lord Keeper of England, or the Chancellor of the County Palatine of Lancaster, within their several jurisdictions (d). The colleges of the Universities of Oxford and Cambridge, and of Westminster, Eton, and Winchester, and cathedral and collegiate churches were exempted from the Act (e); nor did the Act extend to any city, town corporate, or lands or tenements given to charitable uses within them, where special governors were appointed for their government, or to any college, hospital, or free school, which had special (ƒ) visitors or governors, or overseers, (a) 43 Eliz. c. 4. (b) Ante. (c) Lord Brougham held that a Commission issued in 1649, in Cromwell's time, by Lords Commissioners was a nullity: Att.-Gen. v. Governors of Atherstone School, 3 My. & K. 544; but Lords Commissioners had, by 1 Will. & M. c. 21, st. 2, the same powers given to them as the Lord Chancellor or Lord Keeper. It seems, moreover, to have been held that the King might (f) This exemption was held not to appointed by the founders (g); and the jurisdiction of the ordinary was not interfered with (). No one might be a commissioner or juror who had or claimed any part of the lands or goods in question (i). The estates and interests of purchasers for valuable consideration of money or land, without notice, were not to be impeached by the order of the Commissioners (j), but they were to make orders against persons guilty of a breach of trust, and against their heirs, executors, and administrators, to the extent of their assets (k). The Commissioners were to have no power over lands assured to King Henry VIII., King Edward VI., or Queen Mary, by Act of Parliament or otherwise (7), unless they have been given to charitable uses since the beginning of Queen Elizabeth's reign (m). The orders of the Commissioners were to be certified to and carried into execution by the Lord Chancellor or Lord Keeper and the Chancellor of the Duchy, to whom in their respective jurisdictions there was an appeal from the orders of the Commissioners, with full power to annul and vary such orders, and to award costs against persons complaining of orders without just cause (»). With reference to the proceedings under the Statute of Elizabeth under Stat. of Lord Redesdale in the year 1827 observed (p) :—“ A long train of decisions by the Commissioners is reported in a book called 'Duke's Laws of Charitable Uses' (q). Of these proceedings, many were not very consonant to justice; those proceedings, however, were subject to review by the Lord Chancellor; many of them were reviewed, and when reviewed they were found so puzzling, or, at least, not obtaining the ends of justice by an easier mode of proceeding, that, I believe, a Commission has not been issued for a great number of years, it having been found to be much more convenient to return to the old mode of proceeding by information by the Attorney-General.” Proceedings Eliz. Inquiries under later Acts. The last Commission appears to have been issued in the Case of Kirkby Ravensworth Hospital (r). The proceedings under the statute of Elizabeth, which are often useful in obtaining information with reference to old charities, were filed in the Petty Bag Office. (i) Sect. 5. (j) Sect. 6. (k) Sect. 7. (1) Sect. 8. Since the Statute of Elizabeth various inquiries have been made into the condition of charities, which were found in many instances might by their decree reform the abuse of the charitable uses: Case of Sutton Colefield, Duke, 68; ed. by Bridg. 643; Hynshaw v. Corporation of Morpeth, ibid. 69; ed. by Bridg. 242. A limited power of visitation given by the founder of a charity was, however, held not sufficient to deprive the Commissioners of their jurisdiction: Case of Kirkby Ravensworth Hospital, 8 East, 221; 15 Ves. 305. (g) Sect. 3. (h) Sect. 4. (m) Sect. 9. (n) Sect. 10. (p) Corporation of Ludlow v. Greenhouse, 1 Bli. N. S. at p. 61. (7) See also Shelf. Mortm. pp. 276- 300. (r) 15 Ves. 305. to have been shamefully abused. The earliest inquiries necessary to be referred to were those made under 26 Geo. III. c. 58 (s), by which returns by the ministers, churchwardens, and overseers of every parish were required to be made on oath of all charitable donations within their respective parishes. It appears from a Report on the returns under this Act, made by a Committee of the House of Commons which sat in 1786 and 1788, that out of 13,000 parishes and townships in England and Wales, from which returns had been required, fourteen only had omitted to make a return (), and that the returns which were made showed that many donations had been, and others were in danger of being, lost. By 52 Geo. III. c. 102 (u), an attempt, partially successful, was made to obtain a memorial or statement of the charities in each county, to be registered in the office of the clerk of the peace, thence to be transmitted to the Enrolment Office of the Court of Chancery. ham's Com In consequence of the Reports of a Committee of the House of Lord BrougCommons, appointed in the Session of 1816, on the motion of mission. Lord Brougham, and revived in the Sessions of 1817 and 1818, a commission was established, under an Act passed in 1818 (u), to make inquiries limited to the Educational Charities for the poor in England and Wales. The Universities of Oxford and Cambridge, and the colleges and halls therein, and several of the larger endowed schools, all cathedral and collegiate churches, and all charities having special visitors, governors, or overseers, and Jewish and Quaker charities, were exempted, but the Commissioners were to report the names of charities having special visitors. This commission made two reports dated respectively the 2nd March and the 5th July, 1819. In 1819 a second Act (r) was passed, enabling the Crown to increase the number of the Commissioners. It extended their power to all charities for the benefit of poor people in England and Wales, continuing the exemptions of the universities and particular schools mentioned in the former Act, and adding some other exemptions. And by another Act of the same year (»), any five or more of the Commissioners were authorized to certify (8) Gilbert's Act, repealed by the Stat. Law Rev. Act, 1871. (t) Fearon's Endowed pp. 5, 6. Charities, (u) 58 Geo. III. c. 91, repealed by the Stat. Law Rev. Act, 1873. (v) 59 Geo. III. c. 81, repealed by the Stat. Law Rev. Act, 1873. This Act exempted from the authority of the Commission "charitable institutions wholly or principally maintained by voluntary contributions," but it pro- (w) 59 Geo. III. c. 91, repealed by to the Attorney-General such cases as appeared in their judgment. to require interference for the recovery of alienated property, or the reform of abuses. The powers conferred by 59 Geo. III. c. 81, were continued by 5 Geo. IV. c. 58 (x), and 10 Geo. IV. c. 57 (x), to the 1st July, 1830. The Commissioners under these Acts made twenty-two further reports, viz., Report 3 to Report 24, both inclusive. None of these reports touched charities having special visitors, except in those cases in which the visitors were also governors acting in the administration of affairs of the charity. In cases of the latter description, the Commissioners claimed and (although with resistance in many cases) exercised their jurisdiction. They adopted and sustained in this respect the rule of construction which had been applied by the Courts to a similar claim in the Statute of Elizabeth. Such cases, however, formed but a small minority of the charities having special visitors; and down to 1830 the bulk of the foundations which were in that condition remained without inquiry (y). The above-mentioned Acts expired, as has been seen, on the 1st July, 1830, and from that date until December, 1831, there was no commission. A third commission was issued on the 22nd December, 1831, under 1 & 2 Will. IV. c. 34 (2). That Act discontinued the exemption of charities having special visitors, but Christ's Hospital, St. Bartholomew's, Bridewell, St. Thomas's, and Bethlehem Hospitals, were specially exempted. The Commissioners made five reports, viz., from the 25th to the 29th, both inclusive. The reports made by this commission are more complete than those previously made. "They show, that many of the worst cases of abuse and maladministration were found in charities having special visitors. The powers of special visitors, even where they had been exercised, appeared to be insufficient to control or rectify the more flagrant abuses; and in a large majority of cases, the office of visitor had for years been merely nominal. The condition of the minor grammar schools, having special visitors, was found in many instances deplorable" (a). The fourth and last commission, dated the 22nd Oct., 1835, issued under 5 & 6 Will. IV. c. 71 (b), which was, by 7 Will. IV. & 1 Vict. c. 4(b), continued down to 1st July, 1837. Three further reports (x) Repealed by the Stat. Law Rev. Act, 1873. (y) First Report of Commissioners, 4th March. 1819, p. 3. See Fearon's Endowed Charities, p. 11. (2) Repealed by the Stat. Law Rev. Act, 1874. (a) Fearon's Endowed Charities, P. 12. (b) Repealed by the Stat. Law Rev. Act, 1874. viz., the 30th, 31st, and 32nd (the last being comprised in six volumes), were made under this commission, whose inquiries were extended to many institutions exempted by the former Acts. The four successive charity commissions made thirty-two reports, comprised in thirty-eight folio volumes. The number of charities so reported on was 28,880, with an aggregate income of about 1,209,395l. (c). These reports form the basis of all authentic information as to charitable trusts. mittee of 1835. In 1835 a Select Committee of the House of Commons was Select Comappointed for the purpose of examining into the reports of the above-mentioned commissions, so far as then published. The committee by its report recommended the appointment of a permanent board, or other independent authority, to which should be intrusted the duty (1) of inquiring into the administration of charitable trusts; (2) of compelling the production of the accounts of the expenditure of charities, and of auditing such accounts when produced; (3) of facilitating the administration of charities, both as to the development of property, and as to the direct execution of the trusts by supplementing the powers of trustees when defective; (4) of securing the safe custody and due investment of the property of charities; (5) of giving ready and effective expression to the doctrine of cy-près, as administered by Courts of Equity, by means of schemes adapting the administration of charities to altered circumstances, and (6) of controlling, facilitating, and diminishing the cost of legal proceedings. In 1849 a Royal Commission was appointed to examine into Royal Comand report further upon the above-mentioned commissions. The report of this commission was published in 1850, and the recommendations made by it were substantially the same as those made by the Select Committee of 1835. Charitable Trusts Acts. mission of 1849. The report of the Royal Commission of 1849 led in 1853 to the Charit. passing of the Charitable Trusts Act of that year. The Charitable Trusts Act, 1853, was followed by the Charitable Trusts Amendment Act, 1855, and the Charitable Trusts Acts, 1860, 1862, and 1869. Trusts Acts. ment of By these Acts the permanent authority recommended by the EstablishSelect Committee of 1835 has been established under the name of the Charity Commissioners for England and Wales. To this body mission. (c) Fearon's Endowed Charities, pp. 20, 21. Charity Com T. G G |