Charitable Endowment and Social Change:
Cy-Près Orders and Administrative Schemes, 1837-1901
CHARLES MITCHELL*
A. INTRODUCTION
In 1818 the Brougham Commission was founded to investigate charitable trusts
for educational purposes in England and Wales.1 Its remit was widened in 1819,
and it went on to examine more than 29,000 charitable trusts of every kind, and
to publish 40 volumes of reports. It was wound up in 1837, the year of Victoria’s
accession to the throne. It reported that significant amounts of charity property
were being mismanaged or misapplied or applied to purposes that had outlived
their social usefulness. It recommended that a permanent Charity Commission
should be created to address these problems.
This was eventually done in 1853. Reformers hoped that the new Charity
Commission would not only be authorised to correct mismanagement and abuse
by charity trustees, but would also be empowered to modernize the country’s
charitable endowment by systematically redirecting funds from purposes that
were no longer useful into purposes that were better focussed on the provision
of welfare and education to the urban poor. This ambition was never realized.
The Charity Commission was given a power to redirect charitable trust funds
that coincided with the Chancery court’s power to apply charitable property
cy-près, i.e. to apply the funds as nearly as possible to the original trust purposes,
where these were impossible or impracticable. The Commission also acquired
limited powers to redirect certain types of charitable funds into new purposes,
whether or not the original trust purposes were still capable of being pursued.
However it never acquired the power to accomplish a wholesale redistribution of
charitable endowment, and by the end of Victoria’s reign in 1901, its role as an
instrument of welfare policy had significantly diminished. Its jurisdiction over
educational charitable endowments had been transferred to the Department for
Education, the role of local government in the provision of welfare benefits and
civic amenities had grown, and, more fundamentally, it had became increasingly
clear to policymakers that the nation’s social problems needed more radical
solutions than the expenditure of charity funds could achieve.
By the end of the century, too, the Charity Commissioners’ own outlook
had changed: in David Owen’s words, ‘after three or four decades of vigorous
activity [their energy had] palpably waned … and in the years before 1914 (and
after) their performance, as compared with their earlier initiative, seems
Professor of Law, University College London. For their helpful comments on drafts of
this paper, I thank Charlotte Mitchell, Paul Mitchell, Debra Morris, Rachael Mulheron,
Pauline Ridge, and John Styles.
1 B Hargrove, ‘The Reform of the Law and the Administration of Charities in the
Nineteenth Century’ (University of London PhD thesis, 1963) 17-280; RS Tompson, The
Charity Commission and the Age of Reform (London, Routledge & Kegan Paul, 1979).
*
1
unadventurous and routine.’2 Nevertheless, the work done by the Commission
and (to a lesser extent) the courts to divert charitable funds from old to new
purposes played a significant part in the relief of poverty, the advancement of
religion, the advancement of education, and the provision of other public goods
during the Victorian period. Studying their activities can afford us insights into
contemporary views about how to achieve these purposes, and how to allocate
responsibility for achieving them between the state, the Established Church,
charitable bodies, and self-help.
A full examination of these questions obviously lies beyond the scope of a
single paper. The purpose of this work is instead to undertake some illustrative
case studies of the cy-près orders and administrative schemes that were made
by the courts and Charity Commission during the Victorian period. Parts B and C
lay the groundwork for these by describing the legal and institutional framework
within which the courts and the Commission operated. Part D then looks at some
of the schemes and orders that were made, discussing the issues which they
presented and the controversies to which they gave rise.
B. THE CHANCERY COURT AND ITS CY-PRÈS JURISDICTION
1. The Chancery Court
The origins of the cy-près doctrine in English law lie in the jurisdiction exercised
by the ecclesiastical courts over testamentary charitable bequests. Drawing on
principles of civilian and canon law, they would vary the terms of testamentary
charitable trusts whose purposes could not be carried out.3 By the nineteenth
century, the Court of Chancery had wrested away jurisdiction over executorships
and probate from the ecclesiastical courts, and also their jurisdiction over
charitable trustees and the power to order that charitable funds should be
applied cy-près.
For present purposes, there is no need to recount the history of the
Chancery court, the nineteenth century reforms of its structure and practices,
and its transformation into the Chancery Division of the High Court.4 It is enough
D Owen, English Philanthropy 1660-1960 (Cambridge, MA, Harvard University Press,
1964) 213. Owen gives a valuable and detailed account of the Charity Commission’s
activities at 182-208 and 247-308. Similar assessments of the Commission’s
performance can be found in SR Mealing, ‘The British Charity Commission and the CyPrès Doctrine, 1853-94: A Study in the Decline of Reforming Zeal’ (1973) 6 Histoire
Sociale / Social History 5; M Chesterman, Charities, Trusts and Social Welfare (London,
Weidenfeld & Nicolson, 1979) 62-75; JJ Fishman, ‘Charitable Accountability and Reform
in Nineteenth-Century England: The Case of the Charity Commission’ (2005) 80
Chicago-Kent Law Review 724. Cf the ODNB’s summary of Sir Lewis Selby-Bigge’s work
as an Assistant Charity Commissioner from 1894 to 1900: ‘his somewhat cautious and
conservative approach melded admirably with both the work and his colleagues’: CND
Daglish, ‘Bigge, Sir Lewis Amherst Selby-, first baronet (1860–1951)’, Oxford Dictionary
of
National
Biography,
OUP,
2004;
online
edn,
Jan
2008;
http://www.oxforddnb.com/view/article/63835.
3 G Jones, History of the Law of Charity 1532-1827 (Cambridge, CUP, 1969) 74; RH
Helmholz, The Oxford History of the Laws of England, vol 1: The Canon Law and
Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, OUP, 2004) 417-9.
4 Recent accounts are: M Lobban, ‘Preparing for Fusion: Reforming the Nineteenth
Century Court of Chancery: Parts I and II’ (2004) 22 Law and History Review 389 and
2
2
to say that by the start of the nineteenth century the delays and expense to which
Chancery litigants were exposed had become a matter of considerable notoriety,
and that this was one reason why reformers wished to place the oversight of
charity trustees into the hands of a new Charity Commission.5 This development
is considered in part C. The rest of this part examines the content of the judicial
cy-près doctrine.
2. Legally Charitable Purposes
An important preliminary point is that the cy-près doctrine applied only to trusts
for charitable purposes, and that the question whether the purpose of a trust
was charitable was understood to be a legal question determined by reference to
case law, and ultimately to the Preamble to the Statute of Charitable Uses 1601.6
In other words, once a court had found a purpose to be legally charitable, this
decision would bind future courts in accordance with the doctrine of stare
decisis.7 Several aspects of this call for comment.8
565; M Lobban, ‘The Chancellor, the Chancery and the History of Law Reform’ (2004) 22
Law and History Review 615; P Polden, ‘The Courts of Law’ in W Cornish, S Anderson,
R Cocks, M Lobban, P Polden, and K Smith, The Oxford History of the Laws of England, vol
XI: 1820-1914: The Legal System (Oxford, OUP, 2010) vol XI 646-91 and 834-47. Note
also that by the middle of the nineteenth century the county courts exercised a cy-près
jurisdiction with regard to charitable trusts with an annual income of less than £30.
5 See e.g. Hansard, 2nd series vol 38 cols 1221 (Henry Brougham) and 1230-31 (Sir
Samuel Romilly) (3 June 1818); Hansard, 3rd series vol 86 cols 806-7 (Lord Wrottesley)
(18 May 1846); Hansard, 3rd series vol 126 col 1012 (Lord Cranworth LC) (3 May 1853);
Hansard, 3rd series vol 194 col 1369 (WE Forster) (15 March 1869).
6 The key case in which it was recognised that charity was an inherently legal category,
the boundaries of which had to be tested by reference to past cases and the Preamble,
was Morice v Bishop of Durham (1804) 9 Ves Jun 399, 32 ER 656; (1805) 10 Ves Jun 522,
32 ER 947; see J Getzler, ‘Morice v Bishop of Durham (1805)’ in C Mitchell and P Mitchell
(eds), Landmark Cases in Equity (Oxford, Hart, 2012). At 9 Ves Jun 405, 32 ER 659, Grant
MR said: ‘Those purposes are considered charitable, which [the 1601] Statute
enumerates, or which by analogies are deemed within its spirit and intendment.’ Lord
Eldon expressed the same view at 10 Ves Jun 541, 32 ER 954. The same point was made
in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL).
7 Although it was only during the course of the C19 that this doctrine itself became
settled, by a process described by Patrick Polden as a ‘gradual retreat from the boldness,
and sometimes dogmatism, of some High Victorian judges into a substantive formalism
which treated the common law as a “self-contained objective system of rules”’: Polden (n
4) 546, quoting R Stevens, The Independence of the Judiciary: The View from the Lord
Chancellor's Office (Oxford, Clarendon Press, 1993) 22.
8 In addition to the points made in the text, note also that the courts would follow past
decisions on charitability although the legal context in which the point arose differed
from that in which it had first been decided. So a court might take a broad view of
charitability in order to invalidate as charitable a bequest of realty under the mortmain
statutes (the Charitable Uses Act 1736 and succeeding legislation), and a later court
might then feel constrained to validate as charitable a trust of personalty for the same
purposes. Cases of this kind include Thornton v Howe (1862) 31 Beav 14, 54 ER 1042
(testamentary trust of realty for propagating the religious writings of Joanna Southcote
void because charitable) and Tatham v Drummond (1864) 4 De G J & S 484, 46 ER 1006
(bequest of realty to the Society for the Prevention of Cruelty to Animals void because
3
First, if the same question arose in a later case, whether the purpose was
legally charitable, the same answer had to be given, whatever contemporary
opinion may have been regarding the usefulness of the purpose. So, for example,
Chitty J held in Re Foveaux that
Dole charities were greatly in favour with our ancestors. Modern
experience, regard being had to the increase of population, change of
residence, and other altered circumstances, has shewn that such charities
tend to pauperize a district, and are not beneficial; and in framing new
schemes the court, having within the limits of judicial discretion to
express its own views on the question, sets itself against this form of
charity. Yet undeniably a dole charity if created at the present day is a
valid charity.9
This does not mean that that the courts were unable to develop the law of
charitable status. They could, and did, recognise new legally charitable purposes
by a process of analogical reasoning from the Preamble and from previous
cases.10 During the Victorian period they also started to develop the rule that the
carrying out of a legally charitable purpose must enure to ‘the public benefit’,
and to use this rule to deny legal charitable status to trusts for purposes that had
previously been declared legally charitable.11 However, it was not until the
twentieth century that the courts drew a clear distinction between legally
charitable purposes and legal charitable status, ‘the former being merely one
(albeit necessary) element of the latter together with the requirement that the
purpose be carried on for the benefit of a sufficient section of the community’.12
Secondly, once a charitable trust had been validly created, the trust fund
had to be applied to the trust’s purposes for as long as this was practically
possible. It could not be applied to another purpose, no matter how desirable
this might have seemed to the trustees or the court. So, in Philpott v St George’s
Hospital, Romilly MR said that
If the testator has, by his will, pointed out clearly what he intends to be
done, and his directions are not contrary to the law, this court is bound to
charitable). The law on mortmain was effectively (although not finally) abolished by the
Mortmain and Charitable Uses Act 1891.
9 [1895] 2 Ch 501, 505.
10 e.g. A-G v Heelis (1824) 2 Sim & St 67, 77; 57 ER 270, 274 (Bolton town
improvements); Trustees of the British Museum v White (1826) 2 Sim & St 594, 57 ER
473 (British Museum); University of London v Yarrow (1856) 23 Beav 159, 53 ER 63
(study of animal diseases); Beaumont v Oliveira (1869) LR 4 Ch App 309 (Royal
Geographical Society).
11 e.g. Cocks v Manners (1871) LR 12 Eq 574, 585; Re White [1893] 2 Ch 41, 53; cf A-G v
Herrick (1772) Amb 712, 27 ER 461; Baker v Sutton (1836) 1 Keen 224, 233; 48 ER 292,
295. Discussed in P Ridge, ‘Legal Neutrality, Public Benefit and Religious Charitable
Purposes: Making Sense of Thornton v Howe’ (2010) 31 JLH 177, 199-202.
12 J Garton, Public Benefit in Charity Law: Principles and Practice (Oxford, OUP, 2013)
para 1.22, identifying Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297 as the
case in which this step was decisively taken. The distinction was not clearly drawn in
Verge v Somerville [1924] AC 496 (PC), although the case turned exactly on the question
whether a trust was legally charitable if it benefited those who were not poor.
4
carry that intention into effect, and has no right and is not at liberty to
speculate upon whether it would have been more expedient or beneficial
for the community that a different mode of application of the funds in
charity should have occurred to the mind of the testator, or that he should
have directed some different scheme for carrying his charitable intentions
into effect. Accordingly, instances of charities of the most useless
description have come before the court, but which it has considered itself
bound to carry into effect.13
Thirdly, a legally charitable purpose did not cease to be legally charitable
because economic and social circumstances, or thinking about welfare problems,
had changed since the time when the trust was created. This is no longer the law,
following National Anti-Vivisection Society v IRC,14 which was decided in 1948.
There the House of Lords held that a court can depart from a previous decision
on charitable status on the grounds of altered social and economic circumstances.
In reaching this conclusion, Lord Simonds drew support from nineteenth century
cases concerning the cy-près application of surplus charitable funds, where the
courts had declined to apply the surplus to purposes closely resembling those
named by the settlor, on the ground that ‘men’s ideas have changed’.15 As Lord
(1859) 27 Beav 107, 111-2; 54 ER 42, 44. See too A-G v Whitchurch (1796) 3 Ves Jun
141, 144; 30 ER 937, 939; Bishop of Hereford v Adams (1805) 7 Ves Jun 324, 329; 32 ER
132, 134; A-G v Earl of Mansfield (1827) 2 Russ 501, 520; 38 ER 423, 430; A-G v Calvert
(1857) 23 Beav 248, 254-5; 53 ER 97, 100; Commissioners for Special Purposes of the
Income Tax v Pemsel [1891] AC 572, 572-3. And cf Craigdallie v Aikman (1813) 1 Dow 1,
3 ER 601, a case concerning the allocation of property between rival sects following a
doctrinal dispute between members of a religious body, as explained by Lord Eldon in
Craigdallie v Aikman (No 2) (1820) 2 Bli 529, 539-540; 4 ER 435, 438. ‘if we could find
out what were the religious principles of those who originally attended the chapel, we
should hold the building appropriated to the use of persons who adhere to the same
religious principles.’ Famously, the same approach was taken by the HL in General
Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515, with the result that
‘[h]undreds of thousands of people [were] rendered churchless and several hundreds of
ministers [had to] share their exile, while … four or five thousand people … [found]
themselves heirs to hundreds of churches and to millions in cash and securities’: Lord
Rodger of Earslferry, The Courts, the Church and the Constitution: Aspects of the
Disruption of 1843 (Edinburgh, Edinburgh University Press, 2008) 104. Parliamentary
intervention was needed to solve these problems, in the shape of the Churches
(Scotland) Act 1905. At 102, Lord Rodger describes Haldane QC’s presentation of the
United Free Church’s losing case in the HL as ‘a textbook study in the art of bad appellate
advocacy.’ Craigdallie and the Free Church case are also discussed in J Getzler, ‘Faith,
Trust and Charity’ in A Burrows, D Johnston and R Zimmerman (eds), Judge and Jurist:
Essays in Memory of Lord Rodger of Earlsferry (Oxford, OUP, 2013) 559.
14 [1948] AC 31, departing from Re Foveaux [1895] 2 Ch 501, when deciding that antivivisection had ceased to be a charitable purpose. See too (1993) 1 Ch Com Dec 4, where
the Charity Commission departed from Re Stephens (1892) 8 TLR 792, when deciding
that rifle clubs had ceased to be charitable; in 2001 the Charity Commission also
departed from General Medical Council v IRC [1928] All ER 252, when finding that the
purposes of the General Medical Council had become charitable: http://www.charitycommission.gov.uk/library/start/gmc.pdf.
15 Ibid, 67-70, considering A-G v Marchant (1866) LR 3 Eq 424 and Re Campden Charities
(1881) 18 Ch D 310 (discussed below in the text following n 144). The words quoted in
13
5
Porter said in his dissenting speech, however, it is one thing to hold that trust
money could be more usefully spent on a new purpose when the trust’s original
purpose fails, and another to hold that a purpose has ceased to be legally
charitable because social attitudes have changed.16 Judges of the Victorian period
made findings of the former type, but as the passages of Chitty J’s and Romilly
MR’s judgments which have been quoted show, they did not think that findings
of the latter type were open to them.
3. The Equitable Cy-Près Doctrine
Following a period of judicial activism led by Arden MR and Lord Eldon LC at the
end of the eighteenth and beginning of the nineteenth centuries,17 the equitable
rules governing the cy-près doctrine became comparatively settled and did not
significantly change for the rest of the nineteenth century.18 Indeed, the content
of the equitable cy-près doctrine remains largely unchanged,19 although the rules
determining when the doctrine should be applied have been somewhat relaxed
by legislation over the past fifty years.20
the text come from Jessel MR’s judgment in the latter case at 324. See also Lord Wright’s
comments in National Anti-Vivisection Society at 42.
16 Ibid, 57-8.
17 Discussed in Jones (n 3) 138-156. See also H Gray, ‘The History and Development in
England of the Cy-Près Principle in Charities’ (1953) Boston University Law Review 30;
J Picton, ‘Moggridge v Thackwell: Defining the Nature of the Courts’ Scheme-Making
Power’ (2014) 16 CLPR 000.
18 This assessment is based on a reading of the cases cited in this section, and of the
following practitioner works of the time: WF Finlason, A Brief and Practical Exposition of
the Law of Charitable Trusts (London, V & R Stevens & Sons, 1860); OD Tudor, The Law
of Charitable Trusts 2nd edn (London, Butterworths, 1871); FM Whiteford, The Law
Relating to Charities (London, Stevens & Haynes, 1878); LS Bristow and WI Cook, The
Law of Charities and Mortmain, Being a Third Edition of Tudor’s Charitable Trusts
(London, Reeves & Turner, 1889); LS Bristow, CA Hunt and HG Burdett, The Law of
Charities and Mortmain, Being the Fourth Edition of Tudor’s Charitable Trusts (London,
Sweet & Maxwell, 1906). For a similar overall assessment, see Hargrove (n 1) 516:
‘Were a complete judgment to be taken out of its context and read without knowledge of
the date upon which it was delivered, it would be impossible to tell whether the decision
occurred in 1810 or 1890.’
19 For the current law, see P Luxton, The Law of Charities (Oxford, OUP, 2001) chap 15;
J Warburton, D Morris and NF Riddle, Tudor on Charities 9th edn (London, Sweet &
Maxwell, 2003) chap 11; RP Mulheron, The Modern Cy-près Doctrine: Applications and
Implications (London, Cavendish, 2006) chaps 1-4; H Picarda, The Law and Practice
Relating to Charities 4th edn (Haywards Heath, Bloomsbury Professional, 2010) chaps
29-32.
20 Charities Act 1960, s 13; Charities Act 1993, s 13, amended by Charities Act 2006,
s 15; Charities Act 2011, s 62. These sections have relaxed the requirement that the
original purpose must have become impossible or impracticable, and have allowed
greater attention to be paid to changes in social circumstances when identifying a new
purpose to which the funds should be applied. See e.g. Varsani v Jesani [1999] Ch 219
(CA), a case concerning the ownership of a religious sect’s property following a doctrinal
split that was resolved differently from the Free Church case noted above in n 13.
6
The law distinguished between judicial and prerogative cy-près powers.21
The judicial doctrine applied where property was settled on a trust for charitable
purposes which could not be carried out in the manner stated by the settlor; the
prerogative doctrine applied where legal title to property was given to a charity
without a declaration of trust, and where the property could not be applied in
the manner stated by the donor. The judicial doctrine enabled the courts to make
a scheme for application of the trust property; the prerogative doctrine enabled
the Crown to apply the property cy-près by exercise of the sign manual. In either
case, the trustees or donee could only apply the property to a new purpose
under directions: they could not simply decide to do this for themselves.22
The judicial cy-près doctrine was the more significant of the two. This was
understood to take in situations where a trust’s purposes failed and situations
where the terms of a trust were ambiguously expressed. Where there was
ambiguity, the trust was not invalidated for uncertainty of objects (as a private
trust would have been), and instead the courts would make a scheme telling the
trustees how to apply the property.23 In such cases, the courts did not purport to
alter the purposes to which the trust funds would be applied; they merely sought
to construe them so as to discover what they were. Nevertheless, cases of this
kind were thought to be sufficiently similar to cases where a trust’s purposes
were clearly expressed, but impossible or impracticable, for the two types of case
to be treated as different aspects of a single doctrine.24
In cases where a trust’s purposes failed, a distinction was drawn between
initial and supervening failure. Where a trust immediately failed, the trust funds
could be applied cy-près only if the settlor had had a general charitable intention
when declaring the trust.25 Where a testamentary gift was made to a named
institution that had ceased to exist by the time of the testator’s death, the courts
Moggridge v Thackwell (1803) 7 Ves Jun 36, 86; 32 ER 15, 32; Paice v Archbishop of
Canterbury (1807) 14 Ves Jun 364, 372; 33 ER 560, 563; Ommanney v Butcher (1823) T
& R 260, 270; 37 ER 1098, 1101; A-G v Ironmongers’ Co (1834) 2 M & K 576, 580; 39 ER
1064, 1065 (arguendo); Re Pyne [1903] 1 Ch 83, 86-7.
22 Re Campden Charities (1881) 18 Ch D 310, 328-9.
23 As in e.g. Mills v Farmer (1815) 19 Ves Jun 483, 34 ER 595 (‘other charitable purposes
as I do intend to name hereafter’; none named); Powell v A-G (1817) 3 Mer 48, 36 ER 19
(‘widows and children of seamen belonging to the town of Liverpool’); A-G v Wilkinson
(1839) 1 Beav 370, 48 ER 983 (‘relief of the poor of the township of Slaidburn’); Bennett
v Hayter (1839) 2 Beav 81, 48 ER 1110 (‘the Jews’ poor, Mile End’; ‘preachers in the
Baptist persuasion’; ‘Quakers’ preachers’); Lewis v Allenby (1870) LR 10 Eq 668 (‘any
hospitals or other charitable institutions situate in London or elsewhere in England’ as
the trustees shall think proper); Thompson v Corby (1860) 27 Beav 649, 54 ER 257
(‘twenty aged widows and spinsters of the parish of Peterborough’); Re Sutton (1885)
28 Ch D 464 (‘charitable and deserving objects’).
24 See e.g. LS Bristow and WI Cook, The Law of Charities and Mortmain, Being a Third
Edition of Tudor’s Charitable Trusts (London, Reeves & Turner, 1889) 139: the cy-près
doctrine ‘is not perhaps quite applicable to cases where no particular objects are named
by the donor, but it is commonly extended to include them, and that extension is
convenient.’
25 A-G v Boultbee (1794) 2 Ves Jun 380, 387-8; 30 ER 683, 687; Mills v Farmer (1815) 19
Ves Jun 483, 486; 34 ER 595, 596; Mayor of Lyons v Advocate-General of Bengal (1876) 1
App Cas 91, 112-4; Biscoe v Jackson (1887) 35 Ch D 460.
21
7
were slow to find such a general intention,26 but they were quicker to do so
where the legacy was made to an ostensibly charitable institution that had never
existed.27 They would also do so where the trust immediately failed for illegality,
a rule that was thought unjustifiable but too well entrenched to depart from.28
Where a trust was validly created, and its objects subsequently failed, the funds
were applied cy-près regardless of whether the settlor had had any general
charitable intention,29 unless the settlor had expressly specified that in this case
the property should result to his estate.30
The application of property to a trust’s stated purposes was held to be
impossible or impracticable in various situations, including: where the trust’s
purposes were illegal;31 where the intended trustee refused the trusteeship;32
where the trust’s purposes required the acquisition of property or appointment
of an officer and none could be found;33 where changed circumstances made the
trust’s purposes redundant;34 and where the trust income was greater than the
Clark v Taylor (1853) 1 Drew 642, 61 ER 596; Fisk v A-G (1867) LR 4 Eq 521; Re Ovey
(1885) 29 Ch D 560; Re Rymer [1895] 1 Ch 19.
27 Bennett v Hayter (1839) 2 Beav 81, 48 ER 1110; Loscombe v Wintringham (1850) 13
Beav 87, 51 ER 34; Re Clergy Society (1856) 2 K & J 615, 622; 69 ER 928, 931; Re
Maguire (1870) LR 9 Eq 632; Re Davis [1902] 1 Ch 876.
28 See Lord Eldon’s comments in Moggridge v Thackwell (1803) 7 Ves Jun 36, 75-6 and
81; 32 ER 15, 28 and 30; and also in A-G v Mayor of Bristol (1820) 2 J & W 294, 308; 37
ER 640, 645. See too A-G v Todd (1837) 1 Keen 803, 48 ER 516; National Anti-Vivisection
Society v IRC [1948] AC 31, 64.
29 A-G v Mayor of Bristol (1820) 2 J & W 295, 37 ER 640; Hayter v Trego (1830) 5 Russ
113, 38 ER 970; A-G v Earl of Craven (1856) 21 Beav 292, 52 ER 910; Re Slevin [1891] 2
Ch 236.
30 Re Randell (1888) 38 Ch D 213, following Walsh v Secretary of State for India (1863)
10 HLC 367, 11 ER 1068.
31 A-G v Vint (1850) 3 De G & Sm 704, 64 ER 669 (provision of porter to workhouse
inmates); Habershon v Vardon (1851) 4 De G & Sm 467, 64 ER 916 (trust for restoration
of Jews to Jerusalem liable to promote revolution against Ottoman empire); Thrupp v
Collett (1858) 26 Beav 125, 53 ER 844 (payment of fines imposed on poachers).
32 Reeve v A-G (1843) 3 Hare 191, 67 ER 351 (intended trustee institutions declined gifts
on trust, as not being within the purposes for which they were constituted); New v
Bonaker (1867) LR 4 Eq 655 (US President and Vice-President, and state governor of
Pennsylvania, disclaimed trust to build and endow college, at which professor would
inculcate natural rights of black people). Cf A-G v Sturge (1854) 19 Beav 597, 52 ER 482
(nominated trustee died).
33 Biscoe v Jackson (1887) LR 35 Ch D 460 (construction of soup kitchen and cottage
hospital in parish; no land available); A-G v Stewart (1872) LR 14 Eq 17 (place of
worship for Gaelic monoglots in London; no minister can be found).
34 A-G v Mayor of City of London (1790) 3 Bro CC 171, 29 ER 472 (propagation of
Christianity among ‘infidels’ of Virginia; none remain); A-G v Bishop of Llandaff (1819) 2
My & K 586n, 39 ER 1067n (release of Christian prisoners in Turkey or Barbary; none
remain); A-G v Ironmongers’ Co (1834) 2 M & K 576, 39 ER 1064 (ditto); A-G v Gibson
(1835) 2 Beav 317n, 48 ER 1206n (redemption of slaves in colonies; slavery abolished
there); A-G v Earl of Craven (1856) 21 Beav 392, 52 ER 910 (medical treatment and
burial of plague victims; plague eliminated in the British Isles); A-G v Daugars (1864) 12
WR 363 (benefit of French Protestant refugees in London; only their descendants
remain); Re Prison Charities (1873) LR 16 Eq 129 (release of imprisoned debtors;
imprisonment for debt abolished); Mayor of Lyons v Advocate General of Bengal (1876) 1
26
8
expenditure needed to achieve the trust’s purposes, for example, because it had
increased since the time when the trust was settled.35 However, the courts would
not sanction the application of increased funds to new purposes where increased
expenditure on the trust’s original purposes remained practicable.36
Some inroads were made into this last principle in Clephane v Lord
Provost of Edinburgh37 and in Re Campden Charities.38 In the former case money
was paid to compensate a charity for the destruction of its hospital building, and
the House of Lords held that this money could be applied to outdoor poor relief
rather than the construction of a new hospital building, according to Lord
Westbury because there was a difference between the settlor’s objective and the
means directed for its accomplishment, and ‘the means for the attainment of the
end may be altered from time to time’.39 In the latter case funds for the purchase
of apprenticeships and the giving of doles were applied to educational purposes
and to other modes of poor relief, according to Jessel MR because the court could
make a cy-près order where a trust’s purposes were out of line with ‘the existing
usages of society’.40 The Charity Commission considered that these authorities
imparted a new elasticity to the law,41 but there was an element of wishful
thinking in this.42 Not for the first or last time in his judicial career, Jessel MR
may have gone further than previous courts, but even so he ordered that part of
the apprenticeship fund had to be used for its original purpose, and although he
acted more freely towards the dole fund, the trustees had already ceased paying
doles in practice.43 There was no move by later courts to use Campden to develop
App Cas 91 (ditto); A-G v Duke of Northumberland [1877] WN 246 (release of poor
captives taken by Turkish pirates; none remain).
35 As in e.g. A-G v Haberdashers’ Co (1792) 4 Bro CC 103, 29 ER 800; Mercers Co v A-G
(1828) 2 Bli NS 165, 4 ER 1094; A-G v Coopers’ Co (1840) 3 Beav 29, 49 ER 12; Re
Lambeth Charities (1853) 22 LJ (NS) Ch 959; A-G v Rochester Corp (1854) 5 De G M & G
797, 43 ER 1079; Re Ashton’s Charity (1859) 27 Beav 115, 54 ER 45; Re Campden
Charities (1881) 18 Ch D 310.
36 A-G v Boultbee (1794) 2 Ves Jun 380, 387-8; 30 ER 683, 687; A-G v Whiteley (1805) 11
Ves Jun 241, 249; 32 ER 1080, 1083; A-G v Rochester Corp (1854) 5 De G M & G 797, 813;
43 ER 1079, 1086; A-G v Governors of Sherborne Grammar School (1854) 18 Beav 256,
280; 52 ER 101, 111; Re Palatine Estate Charity (1889) 39 Ch D 54, 58. See also cases
cited in n 13.
37 (1869) LR 1 HL Sc 417, revisiting an earlier order: (1864) 4 Macq 603. This was a
Scottish case but the law was assumed to be the same in England and Scotland.
38 (1881) 18 Ch D 310.
39 Clephane (n 37) 421 (Lord Westbury).
40 Campden (n 38) 326 (Jessel MR).
41 Twenty-eighth Report of the Charity Commissioners for England and Wales PP 1881 (HC
No 2862) 9-10.
42 As noted in Hargrove (n 1) 352-4. As discussed below in part C, the Commission had
the same cy-près powers as the courts, and repeatedly asked for these to be widened,
with only limited success; hence it had an interest in portraying the scope of the court’s
cy-près powers as widely as it could.
43 As noted in Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No
306) 104-5 (QQ 1458-65, F Vaughan Hawkins). See also the later observation by the
Chief Charity Commissioner that ‘It is [easier] … to apply apprenticeship funds [cy-près]
to educational purposes than to apply funds which have not, as apprenticeship funds
appear to have, a sort of quasi-educational flavour’, and also his description of Jessel
9
a new rule that funds could be applied cy-près whenever the court thought
another purpose would be more beneficial, and in 1910, in Re Weir Hospital,
Cozens-Hardy MR reasserted the previous orthodoxy that ‘there can be no
question of cy-près until it is clearly established that the directions of the
testator cannot be carried into effect.’44
Once the cy-près doctrine had been triggered, it had to be decided what
purpose would be ‘as near as possible’ to the purpose specified by the settlor. It
was often said that the new purpose had to be the practicable purpose that was
the closest to the purpose selected by the settlor, and that the views of the court
as to the best possible use of the property were irrelevant, as was the fact that
the settlor might have chosen a different purpose, had he foreseen the social
changes which had taken place since the trust was settled.45 However, it was also
said that social usefulness was a factor that could be taken into account along
with proximity to the settlor’s original purpose when applying trust property
cy-près.46 So the cases on this issue were inconsistent. Sometimes the courts
would refuse to sanction schemes on the ground that these were too distant from
the settlor’s original purpose; at other times schemes were made that seemed
more closely to reflect the courts’ views than those of the settlor.
Examples of the narrow approach include A-G v Whiteley,47 where Lord
Eldon held that a gift for ‘grammar school education’ could not be used to fund
tuition in languages other than Latin and Greek. In A-G v Wansay48 a fund to buy
apprenticeships for poor Presbyterian boys could not be used to benefit poor
MR’s judgment as the ‘high-water mark’: Report from the Select Committee on Charity
Commission PP 1894 (HC No 221) 27 and 30 (QQ 391 and 444, Sir Henry Longley).
44 [1910] 2 Ch 124, 131. The CA in Re Weir Hospital treated Campden Charities as a case
where it had become impossible to carry out the settlor’s purposes: ibid 132 and 141.
However, these were not the facts of the case.
45 A-G v Coopers’ Co (1812) 19 Ves Jun 187, 189; 34 ER 488, 489; Re Stanes’ Will (1853)
21 LT (OS) 261, 261; A-G v Governors of Sherborne Grammar School (1854) 18 Beav 256,
280-1; 52 ER 101, 111; A-G v Boucherett (1858) 25 Beav 116, 118-9; 53 ER 580, 581-2;
Re Ashton’s Charity (1859) 27 Beav 115; Re Prison Charities (1873) LR 16 Eq 129, 149.
46 A-G v Ironmongers’ Co (1844) 10 Cl & F 908, 922; Re Campden Charities (1881) 18 Ch
D 310; Re Weir Hospital [1910] 2 Ch 124, 132.
47 (1805) 11 Ves Jun 241, 32 ER 1080, relying on the definition in Johnson’s dictionary:
‘GRAMMAR SCHOOL, a school in which the learned languages are grammatically taught’.
As counsel observed in A-G v Hartley (1820) 2 J & W 353, 366; 37 ER 663, 668, that was
historically inaccurate, a point also made in Specimens of the Table Talk of Samuel Taylor
Coleridge 2nd edn (London, John Murray, 1836) 71: ‘Lord Eldon’s doctrine, that Grammar
Schools in the sense of the reigns of Edward VI and Queen Elizabeth must necessarily
mean schools for teaching Latin and Greek is, I think, founded on an insufficient
knowledge of the history and literature of the sixteenth century. Ben Jonson uses the
term “grammar” without any reference to the learned languages.’ Whiteley was not
followed, and orders were made that the curriculum of various grammar schools should
be expanded, in A-G v Dixie (1825) 3 Russ 534n, 38 ER 676n; A-G v Haberdashers’ Co
(1828) 3 Russ 530, 38 ER 674; A-G v Gascoigne (1833) 2 My & K 647, 39 ER 1091; and AG v Caius College (1837) 2 Keen 150, 48 ER 585; note also that the Grammar Schools Act
1840 made it lawful to apply the income of grammar schools to purposes other than the
teaching of classical languages, with the master’s consent.
48 (1808) 15 Ves Jun 231, 33 ER 742.
10
boys of other religions; in Re Stanes’ Will49 a gift for the ‘poor and needy’ could
not be used for education; and in A-G v Marchant50 the trust deed provided that
the income should be paid in equal amounts to a schoolmaster and Trinity
College, Cambridge, and the court divided a surplus equally although the master
had far greater need of the money than the college. In Re Prison Charities,51 a gift
for poor prisoners could not be applied to found an industrial school for
prisoners’ children; and in Re Bridewell Hospital,52 income from a trust for the
reformation of vagrants by compulsory labour could not be used to relieve the
destitute if they were not required to work.
Cases taking a more flexible approach include53 A-G v Ironmongers’ Co,54
where a gift for the redemption of English captives in Barbary was applied to
educational purposes in England, despite Lord Campbell’s pithy observation that
‘if education in England be next to redemption of slaves in Barbary, it is next at a
great interval’.55 In Re Ashton’s Charity56 a gift for almswomen was used to found
a school; and in Re Campden Charities,57 money for doles was applied to
educational purposes.
C. THE CHARITY COMMISSION AND ITS SCHEME-MAKING POWERS
1. The Charitable Trusts Act 1853
The Brougham Commission’s recommendation in 1837 that a permanent Charity
Commission be established was not implemented quickly. Reformers’ efforts to
enact legislation to this end were resisted by powerful charitable institutions,
including the Church, the universities, the London medical hospitals, and the City
livery companies, all of which opposed outside control,58 and by the courts,
which were reluctant to surrender their powers. Fifteen years of commissions
and select committees followed, and thirteen bills were lost, 59 before a
permanent Charity Commission was created by the Charitable Trusts Act 1853.
(1853) 21 LT (OS) 261.
(1866) LR 3 Eq 424. See too A-G v Dean and Canons of Windsor (1860) 8 HL Cas 369,
11 ER 472, A-G v Wax-Chandlers Co (1873) LR 6 HL 19. For criticism of the rule that
surpluses had to be divided in the same proportions as the original fund, see Report
from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 103 (Q 1448,
F Vaughan Hawkins).
51 (1873) LR 16 Eq 129.
52 (1860) 8 WR 718; also reported at (1860) 30 LJ (NS) Ch 99.
53 All these were prefigured by Da Costa v Da Pas (1754) Amb 228, 27 ER 150, where the
prerogative cy-près power was exercised to apply a void legacy to found a Jewish
yeshiva (religious school) to pay for a Christian preacher at the Foundling Hospital.
54 (1844) 10 Cl & F 908, 8 ER 983. Money from this large trust was applied to
educational purposes in 700 parishes around the country: Report from the Select
Committee on Charitable Trusts Acts PP 1884 (HC No 306) 23 (Q 311, Henry Longley).
55 ibid, 10 Cl & F 925.
56 (1859) 27 Beav 115, 54 ER 45.
57 (1881) 18 Ch D 310.
58 And continued to do so whenever an extension of the Charity Commission’s powers
was mooted: see e.g. Report from the Select Committee on Charitable Trusts Acts PP 1884
(HC No 306) 234 (QQ 3673-5, Douglas Richmond).
59 Described in JP Fearon, The Endowed Charities: With Some Suggestions for Further
Legislation Regarding Them (London, Longman, 1855) 24-46.
49
50
11
This body originally consisted of three full-time paid commissioners, one
part-time unpaid commissioner (who sat in the House of Commons and
represented the Commission’s interests there), and a supporting staff. Their
duties included the scrutiny of charity accounts, the investigation of suspected
abuses in the administration of charities, the custodianship of charity property
voluntarily transferred to them by trustees, the provision of advice to trustees on
administrative matters, and (most pertinently for present purposes) the making
of administrative schemes for the application of charity property. The Charity
Commission was not responsible for every charitable organisation, but only for
charitable endowments, i.e. property held for charitable purposes where the
capital could not be spent. 60 These included charitable trusts and some
charitable corporations, but not voluntary associations which operated as
‘collecting charities’ and which were free to spend their funds without observing
any distinction between capital and income. In addition, a group of charities with
visitors or other supervisory officers were exempted from the Commission’s
jurisdiction, e.g. cathedrals, universities, and some schools – unfortunately, said
some critics, given that the Brougham Commissioners had found ‘many of the
worst cases of abuse and maladministration … in charities having special visitors
… [particularly] the minor Grammar Schools’.61
Many of the full-time Commissioners were lawyers whose training and
professional instincts led them to take a distinctly legal, not to say legalistic,
approach to charity problems.62 Peter Erle, the first Chief Commissioner, was a
conveyancer, and brother to Sir William Erle, the Chief Justice of Common Pleas.
James Hill, another of the first Commissioners, was a barrister and author of a
well-known work on trusts law.63 Arthur (afterwards Sir Arthur, afterwards
Lord) Hobhouse was a Chancery barrister from 1845 until 1866.64 Illness caused
him to leave the Bar and become a Charity Commissioner; after a stint as an
Endowed Schools Commissioner he succeeded Sir James Fitzjames Stephen as
law member of the council of the viceroy of India in 1872; he later became a
member of the Judicial Committee of the Privy Council, in 1881, serving in this
capacity for the next twenty years. Henry (afterwards Sir Henry) Longley, eldest
son of the Archbishop of Canterbury, was called to the Bar in 1860, was a Poor
Law inspector and Local Government Board inspector in the 1870s, and became
a Charity Commissioner and later Chief Commissioner in the 1880s and 1890s.
Charitable Trusts Act 1853, ss 62 and 66; but note the wide interpretation of
‘endowment’ adopted in Re Clergy Orphan Corp [1894] 3 Ch 145 (discussed in Report of
the Committee on the Law and Practice Relating to Charitable Trusts (Cmd 8710, 1952)
(the ‘Nathan Report’) paras 451-5). This had the bad effect of discouraging charity
trustees of ‘mixed’ charities, whose property was a mixture of capital endowment and
‘spending capital’ from investing income lest it be treated as endowment which they
would be prevented from spending.
61 Fearon (n 59) 12. Efforts were made to remedy some of these problems by the
enactment of the Endowed Schools Acts 1869 and 1873, discussed below.
62 A point well made in Owen (n 2) 203.
63 J Hill, A Practical Treatise on the Law Relating to Trustees (London, V & R Stevens and
G S Norton, 1845).
64 He appeared as junior counsel for the Bishop of Winchester in the St Cross Hospital
case, considered below in Part D(2).
60
12
Prior to the enactment of the 1853 legislation, reformers had hoped that
the Commission would be empowered to modernize all charitable endowment,
by redirecting funds held on trust for purposes that were no longer thought
beneficial (although no one went so far as to argue that settlors should be
prevented from creating new endowments for purposes that were no longer
socially desirable although they were still legally charitable).65 The 1853 bill
contained a clause that would have empowered the Commission to transfer any
charitable funds to any charitable objects in four cases: failure of the trust’s
original purpose, departure from the founder’s intention or the creation of
pauperism or immorality, where the union of small charities would create
efficiencies, and where a trust of more than 60 years standing had no or
insignificant beneficial results.66 This would have given the Commission powers
that went well beyond the courts’ cy-près jurisdiction, but the clause was cut
down in committee.
The Commission never subsequently acquired such general powers,
although it pressed for these for many years,67 and it did acquire powers to apply
certain types of charity property to new purposes in circumstances that went
beyond the scope of the cy-près doctrine, under the Endowed Schools Acts 1869
and 1873 and the City of London Parochial Charities Act 1883.68 In 1881 and
1882 bills were lost that would have widened the Commission’s general schememaking powers. In 1884 a Select Committee recommended that these powers
should be enlarged,69 but this recommendation was never implemented, nor
were the recommendations of another Select Committee in 1894, that the
The introduction of such a rule was later mooted, but rejected on the basis that ‘the
main office of endowment is to afford a field for experiments in benevolence’: CS Kenny,
The True Principles of Legislation with Regard to Property given for Charitable or other
Public Uses (London: Reeves & Turner, 1880) 24-5, quoted and discussed with approval
in Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 70-2
(QQ 872-7, Henry Longley); see also 92-4 (QQ 1255-8 and 1269-72, Henry Longley)
66 Hansard, 3rd series, vol 126, cols 1016-7 (Lord Cranworth LC) (3 May 1853); the
relevant clause is reproduced in the Nathan Report (n 60) 23n.
67 This was a recurring theme of the Charity Commission’s Annual Reports: e.g. Sixth
Report of the Charity Commissioners for England and Wales PP 1859 (HC No 2484) 5;
Fourteenth Report of the Charity Commissioners for England and Wales PP 1866 (HC No
3798) 4; Sixteenth Report of the Charity Commissioners for England and Wales PP 186869 (HC No 4117) 8; Seventeenth Report of the Charity Commissioners for England and
Wales PP 1870 (HC No 73) 5; Twenty-eighth Report of the Charity Commissioners for
England and Wales PP 1881 (HC No 2862) 10-12. See too Vice-Chancellor Sir William
Page Wood, ‘Charitable Trusts’ in GW Hastings (ed), Transactions of the National
Association for the Promotion of Social Science 1859 (London, JW Parker, 1860) 182, 1912; Kenny (n 65) 218-232; Sir A Hobhouse, The Dead Hand. Addresses on the Subject of
Endowments and Settlements of Property (London, Chatto & Windus, 1880) passim; both
discussed in Owen (n 2) 327-9; Sir J Kay-Shuttleworth, Address on Charitable
Endowments: A Paper Read at the Meeting of the Social Science Congress at Edinburgh
1880 (London, Spottiswoode & Co, 1880) 12-13.
68 Discussed in sections (3) and (4) below. The Prison Charities Act 1882 also authorised
the application of funds for the benefit of imprisoned debtors to new purposes, a power
that was used by the Commission to benefit discharged prisoners: Thirty-sixth Report of
the Charity Commissioners PP 1889 (HC No 5685) 15-6.
69 Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) xi.
65
13
Charity Commission should be given wider powers and greater resources, and
brought more directly under Parliamentary control.70
The 1853 Act gave the Charity Commission no power to alter trust
purposes on its own initiative, nor to make or amend schemes for the cy-près
application of charitable funds. Where the Commission thought that cy-près
application would be desirable, it had to certify a case to the Attorney-General,
who would hold an inquiry and in appropriate cases bring Chancery proceedings
for the establishment of a scheme.71 Where the Commission wished to effect a
more substantial reorganisation of a charity’s affairs, and to redirect its property
in a way that went beyond the limits of the cy-près doctrine, it had to present its
scheme to Parliament as a private bill for enactment. In practice, neither
mechanism was satisfactory. Proceedings in Chancery were slow and expensive,
and because no Minister was responsible for steering the Commission’s schemes
through Parliament, many were lost through inertia or opposition by vested
interests. Few schemes were enacted,72 and after a series of failures, the
Commission gave up submitting contentious schemes to Parliament as a waste of
time, effort, and money.73
2. The Charitable Trusts Act 1860
The law was changed by the Charitable Trusts Act 1860, s 2, which empowered
the Charity Commission to make orders ‘such as may now be made by any judge
of the Court of Chancery sitting at Chambers’, including orders to establish
schemes for the cy-près application of charity funds. Where it was doubtful
whether the cy-près doctrine applied, the Commissioners would refer the matter
to the Attorney-General.74 Otherwise they proceeded the same way as the court
would have done when asked to make a cy-près order. They were bound by
relevant court decisions when deciding whether a cy-près event had occurred,
and how to apply the trust property if it had, and although they were not bound
to follow their own previous decisions, they did in fact accumulate a body of
in-house precedents which they sought to follow in the interests of consistency.75
Report from the Select Committee on Charity Commission PP 1894 (HC No 221).
For the details of this process, see Report from the Select Committee on Charitable
Trusts Acts PP 1884 (HC No 306) 108-11 (QQ 1516-72, John Moxon Clabon); the
Commission acquired its own cy-près powers in 1860 (as discussed in the next section),
but only where the annual trust income was less than £50 and/or the trustees
consented to a scheme, and so it continued to refer other cases to the Attorney-General
after this date. A representative collection of the Commission’s opinions on cases
referred to the Attorney General between 1872 and 1895 is held in the National
Archives: TNA PRO/CHAR 16.
72 In the 16 years between 1853 and 1869, only 18 bills were passed: Hansard, 3rd series,
vol 194, col 1370 (WE Forster) (15 March 1869).
73 Sixth Report of the Charity Commissioners for England and Wales PP 1859 (HC No
2484) 5; Sixteenth Report of the Charity Commissioners for England and Wales PP 186869 (HC No 4117) 4-6; Report from the Select Committee on Charitable Trusts Acts PP
1884 (HC No 306) 11-12 (QQ 149-150 and 155, Henry Longley) and 184 (Q2880, Sir
Arthur Hobhouse).
74 Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 12-13
(QQ 157 and 163, Henry Longley).
75 Report from the Select Committee on Charity Commission PP 1894 (HC No 221) 7 (QQ
87-91, Sir Henry Longley), 281-2 and 288 (QQ 3955-6 and 4029, Lord Justice Davey).
70
71
14
The Commission could impose a scheme on unwilling trustees only where
the annual trust income was £50 or less, and when dealing with larger trusts, it
could act only with the consent of a majority of the trustees. Trustees and others
to appeal the Commission’s orders to the Chancery court.76 Also, the small size of
their staff meant that it was never feasible for the Commissioners to seek out
charitable endowments whose purposes had become obsolete: they had to wait
for such trusts to be brought to their notice and then exercise their cy-près
powers where they considered this to be appropriate.77
Nevertheless, the 1860 Act wrought a significant change. Most charities in
England and Wales had an income of less than £50,78 and the effect of the statute
was to transfer almost all non-contentious small charity work from the courts to
the Charity Commission. Between 1856 and 1860, the courts heard 1279
applications for the appointment of trustees or establishment of schemes
authorised by the Commission. Between 1861 and 1877, they heard 112, while
the Commission made 5820 orders of this kind. 79 These included orders
appointing new trustees as well as orders applying property cy-près, but by the
early 1880s the Commission had made around 4,000 cy-près schemes, mostly for
charities with incomes under £50 and mostly with the trustees’ consent.80
3. The Endowed Schools Acts 1869 and 1874
Endowed schools were financed out of endowed funds held on charitable trust.
By the 1860s there were around 3,000 endowed schools, only 800 of which
provided education beyond the elementary level, and only 13 of which provided
secondary education to girls. Few schools sent boys to the universities, and most
had an annual income of less than £100. Many (though not all) of the schools’
endowments fell within the cy-près jurisdiction of the courts and the Charity
Commission, so that their funds could be redirected to other educational
purposes in the event that they became defunct, e.g. through a lack of pupils.
However, cases where a school’s funds were merely mismanaged or applied
ineffectively could not be dealt with in this way.
In 1868 the Schools Inquiry Commission chaired by Lord Taunton
reported that the national provision of secondary education was inadequate, and
recommended a wholesale reorganisation of the funds held by endowed schools.
Under section 8 of the 1860 Act, later amended by the Charitable Trusts Act 1869, s 10,
which required the Attorney-General’s consent before any such appeal could go ahead.
77 Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 15 (Q
188, Henry Longley) and 175 (Q 2739, Sir Arthur Hobhouse); Report from the Select
Committee on Charity Commission PP 1894 (HC No 221) 22 (Q 316, Sir Henry Longley).
There were various ways in which such trusts might come to the Commission’s
attention: by the trustees seeking an order that the property be applied cy-près, by the
trustees submitting accounts with discrepancies (although lack of staff meant that many
accounts were not read), by persons outside the charity complaining about the trustees’
actions, etc.
78 In 1884 there were around 40,000 charities, 90% of which had an annual income of
less than £50, and the remaining 10% of which owned about 85% of all charitable
property by value: Report from the Select Committee on Charitable Trusts Acts PP 1884
(HC No 306) 14 (QQ 182, 185-6, and 189-190, Henry Longley).
79 Twenty-fifth Report of the Charity Commissioners for England and Wales PP 1878 (HC
No 2061) 5-7.
80 Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) vi.
76
15
It considered that the courts and the Charity Commission were unsuitable bodies
to undertake this task, reporting that
The objections to the sufficiency of either, with their present jurisdiction,
for the task of putting the endowed schools on a proper footing … all flow
from the same cause, viz., the view of schools as trusts the execution of
which is to be enforced by a judicial tribunal, not institutions to be
managed freely by competent administrators.81
Instead, the Taunton Commission recommended the creation of a new body with
sweeping powers to alter the governance arrangements of endowed schools,
merge institutions, move schools from one locality to another, and so on.82
This recommendation was implemented by the Endowed Schools Act
1869. This created the Endowed Schools Commission, which was given powers
to reorganise the schools’ endowments under section 9 that went well beyond
the cy-près principle, although the new Commission could only apply the funds
to educational purposes.83 Under section 30 it was also empowered to apply to
the purposes of education money that was held on charitable trusts for certain
non-educational purposes that were no longer thought desirable, namely ‘doles
in money or kind; marriage portions; redemption of prisoners and captives;
relief of poor prisoners for debt; loans; apprenticeship fees; [and] advancement
in life’; also, money held on trust for ‘purposes which have failed altogether or
have become insignificant in comparison with the magnitude of the endowment.’
The latter power could only be exercised with the trustees’ consent.84 Schemes
made pursuant to either power had to be approved by the Education Department
and could be appealed to the Privy Council.
The Endowed Schools Commission had a short but stormy history,85 and
its progress in making schemes for endowed schools was slow: after 3 years only
24 schemes had passed into law.86 The outspoken character of two of the
Endowed Schools Commissioners played a part in this: even before they had
taken up their appointments Lord Lyttleton and Arthur Hobhouse had publicly
committed themselves to radical reform and robust treatment of entrenched
Report of the Schools Inquiry Commission PP 1867-68 (HC 3966) vol 1 463.
Ibid 469-71.
83 Thus, the Commission’s discretion was wider than that afforded by the cy-près
doctrine, but its field of action was narrower: Report from the Select Committee on
Charity Commission PP 1894 (HC No 221) 20 (Q 277, Sir Henry Longley). Various schools
were exempted from the Endowed Schools legislation: Charterhouse, Eton, Harrow,
Rugby, Shrewsbury, Westminster, Winchester; schools linked with cathedral or
collegiate churches; and schools with endowments established since 1819 unless the
trustees indicated otherwise.
84 And was generally used only where the trustees spontaneously asked the Commission
to apply some or all of their endowment to education: Report from the Select Committee
on Charitable Trusts Acts PP 1884 (HC No 306) 222 (Q 3485, Douglas Richmond).
85 Summarised in Owen (n 2) 255-62. See too P Gordon, ‘Some Sources for the History of
the Endowed Schools Commission, 1869-1900’ (1966) 14 British Journal of Educational
Studies 59; J Roach, Secondary Education in England 1870-1902: Public Activity and
Private Enterprise (London, Routledge, 1991).
86 Report of the Endowed Schools Commissioners PP 1872 (HC No 524) 12.
81
82
16
interests.87 So, too, did the tenacity with which many trustees fought to retain
their existing arrangements. After 5 years of argument, and a change of
government, the Endowed Schools Commission was liquidated, and its powers
were transferred to the Charity Commission by the Endowed Schools Act 1874.
For the next decade the Charity Commission concentrated its efforts on
unopposed schemes and largely steered clear of controversy.88 500 schemes
were passed. In time, however, the Commission also came to be attacked, for
supporting the Church of England’s control of schools (which upset the
Nonconformists), 89 for failing to appropriate funds to support elementary
schools (on the ground that these should be funded by ratepayers), and for using
‘free school’ endowments and dole funds to create fee-charging schools (a
practice which followed the Taunton Commission guidelines, but which favoured
children from comparatively well off families over children from poor families, to
whom few competitive scholarships were awarded, where they existed).90 The
Commission’s jurisdiction over endowed schools was transferred to the Board of
Education in 1900.91
4. The City of London Parochial Charities Act 1883
By the second half of the nineteenth century, many poor inhabitants of the City of
London had been driven out by rising rents, and had moved to cheaper dwellings
in the East End. Hence, while the rise in rents meant that parochial charities
which owned land in the area had more money, it also meant that there were
fewer people in the parishes who needed their assistance. The Charity
Owen (n 2) 255. Lyttleton had been a member of the Taunton Commission and
initially declined to become an Endowed Schools Commissioner for that reason.
However he was encouraged to accept the appointment by his brother-in-law, the Prime
Minister William Gladstone. He worked hard to advance the education of working- and
middle-class girls, but did not do as much for his own daughters, who reproached him
‘for having given them the kind of “slippy-sloppy” education that he officially castigated’:
S Fletcher, Victorian Girls: Lord Lyttleton’s Daughters (London, Hambleden, 1997) x. He
suffered from mental illness and killed himself in 1876; it has been said that ‘the strain
of being Endowed Schools Commissioner and the abuse it brought down upon him
aggravated his illness and hastened his end’: P Stansky, ‘Lyttelton and Thring: A Study in
Nineteenth-Century Education’ (1962) 5 Victorian Studies 205, 208.
88 The Commissioners waited to be asked by trustees to exercise their powers, and were
not ‘in the habit of going around the country at random and asking trustees to consent
to give up their endowments under section 30’: Report from the Select Committee on
Charitable Trusts Acts PP 1884 (HC No 306) 16 (Q 209, Henry Longley). 27% of the
schemes created by the Endowed Schools Commission were for girls’ schools, but only
15% of the schemes created by the Charity Commission: S Fletcher, Feminists and
Bureaucrats: A Study in the Development of Girls’ Education (Cambridge, CUP, 1980) 000.
89 As discussed in the text following n 117 below.
90 For the Commission’s practice, see Report from the Select Committee on Charity
Commission PP 1894 (HC No 221) 80 (QQ 1242-4, Douglas Richmond); and for criticism,
see id, 255, 260-1 and 262-3 (QQ 3709-10, 3763, 3767, and 3785-3800, Jesse Collings
MP).
91 By an order in council under the Board of Education Act 1899, s 2. For the history of
the legislation see PHJH Gosden, ‘The Board of Education Act, 1899’ (1962) 11 British
Journal of Educational Studies 44. The powers were later transferred back to the Charity
Commission by the Education Act 1973, s 1.
87
17
Commission reported on several occasions that the resulting anomalies were too
many and too great to be cured by the piecemeal making of cy-près schemes,92
and a Royal Commission was eventually appointed, which agreed that a more
systematic approach was needed.93 The result was the City of London Parochial
Charities Act 1883. This empowered the Charity Commission to reorganize
parochial charities in the City of London and apply their funds over a wider
geographical area and to more up-to-date purposes. 94 These included the
provision of schools, polytechnics, 95 hospitals, libraries, 96 and other civic
amenities, including tracts of land on the perimeter of London’s developing
suburbs that were bought to be kept as open spaces.97
The Commission’s powers were not subject to the constraints of the cyprès doctrine, save with respect to endowments held on ecclesiastical trusts
which could be pooled so as to apply the money to the needs of the whole capital,
but the purposes of which could not otherwise be changed.98 The five largest
parishes were left to handle their own charities in accordance with schemes
framed by the Charity Commission, but the others – around one hundred of them
– were relieved of their responsibilities and management of their funds was
placed in the hands of a new board, the Trustees of the London Parochial
Charities.99 Before this could be done, however, much preliminary legal and
administrative work was required, and to handle this two additional Charity
Thirteenth Report of the Charity Commissioners for England and Wales PP 1866 (HC
100) 3-4; Twenty-fourth Report of the Charity Commissioners for England and Wales PP
1877 (HC 1705) 5-6; Twenty-eighth Report of the Charity Commissioners for England and
Wales PP 1881 (HC No 2862) 12.
93 Report of the Royal City Parochial Charities Commission PP 1880 (HC No 2522).
94 The National Archives holds a collection of statements, memoranda, reports and
schemes relating to the Commission’s administration of the 1883 Act: TNA PRO/CHAR
14. Materials relating to particular parishes are also there: CHAR 7/18 (St Giles
Cripplegate); CHAR 7/19 (St Benet Gracechurch); CHAR 7/20 (Holy Trinity, Minories).
95 New vocational institutions that provided technical training for the lower-middle and
working classes. See e.g. Thirty-fifth Report of the Charity Commissioners for England and
Wales PP 1888 (HC No 5347) 16-7; Thirty-sixth Report of the Charity Commissioners PP
1889 (HC No 5685) 36-47.
96 e.g. Thirty-sixth Report of the Charity Commissioners PP 1889 (HC No 5685) 50-2.
97 e.g. Thirty-fifth Report of the Charity Commissioners for England and Wales PP 1888
(HC No 5347) 15-6. The most notable purchase was of Parliament Hill, 260 acres
adjoining Hampstead Heath that were in danger of being sold for building lots; by
putting up £50,000 with Parliamentary approval, the Commission inspired public bodies
and private individuals to contribute the further £250,000 that was needed to buy the
land: G Shaw Lefevre, English Commons and Forests: The Story of the Battle During the
Last Thirty Years for Public Rights over the Commons and Forests of England and Wales
(London, Cassell & Co, 1894) 55-7, cited in Owen (n 2) 292.
98 There were similar problems in other cities, e.g. Bristol, Exeter, Norwich, Coventry;
the Charity Commission would have welcomed, but never acquired, statutory powers to
consolidate their parochial charities, too: Report from the Select Committee on Charitable
Trusts Acts PP 1884 (HC No 306) 76 (QQ 966-7, Henry Longley).
99 The City of London Parochial Foundation continues to operate, although it is now
known as Trust for London, following a change of name in 2010. Each year it provides
around £7 million in grants to some 400 voluntary and community organizations:
http://www.trustforlondon.org.uk. Its continued wealth derives primarily from City
rents.
92
18
Commissioners were appointed – Sir Francis Sandon, formerly Permanent
Secretary of the Education Office, and James Anstie QC, a Nonconformist
barrister. Even so, the work took nearly ten years.
D. CY-PRÈS ORDERS AND SCHEMES
A complete survey of the cy-près orders and administrative schemes made
during the Victorian period lies beyond the scope of this paper, but some case
studies of orders and schemes are undertaken here. These have been chosen to
illustrate some of the controversies and preoccupations of the time.
1. A-G v Cullum (1842)
Many schemes were made to fund schools, not only with property that had
always been held for educational purposes, but also with property that had been
settled for relief of the poor, or for the benefit of those living in a town or locality.
Cy-près orders to this effect were made by the courts and the Charity
Commission, and the Charity Commission also made schemes for educational
provision under the Endowed Schools Act 1869 and the City of London Parochial
Charities Act 1883. An issue that often arose in connection with these concerned
religious instruction: should this be provided; should it be non-denominational
or should the schoolchildren be taught the doctrines of the Church of England
and required to attend Church services; and should the children of Dissenters
and Roman Catholics and Jews be allowed to opt out?
These questions formed part of a wider set of controversies that divided
supporters of the Church of England and adherents of other creeds during the
eighteenth and nineteenth centuries. These were driven by the spectacular
growth of Nonconformism between 1750 and 1850,100 and extension of the
parliamentary franchise during the nineteenth century to constituencies in the
great industrial towns (where Dissent was strong).101 The pressure exerted by
Nonconformist groups for religious, civic and political equality resulted, among
other things, in the removal of religious barriers to entry into public office102 and
the abolition of church rates.103 These measures provoked strong feelings on
both sides, and so did the question of education. By the start of Victoria’s reign,
Nonconformists had been allowed to run their own schools for a century,104 and
By the 1840s Dissenters made up around one-tenth of the population and one-fifth of
the electorate, and membership of their congregations was growing at a faster rate than
the general population: B Hilton, A Mad, Bad and Dangerous People? England 1783-1846
(Oxford, OUP, 2006) 524 and 527, citing MR Watts, The Dissenters, vol 2: The Expansion
of Evangelical Nonconformity (Oxford, OUP, 1995) 23.
101 Representation of the People Act 1832; Representation of the People Act 1867;
Representation of the People Act 1884.
102 Sacramental Test Act 1828; Catholic Emancipation Act 1829; Parliamentary Elections
Act 1835; Declarations by Quakers etc Act 1838; Municipal Offices Act 1845; Religious
Disabilities Act 1846; Oaths of Allegiance etc and Relief of Jews Act 1858; Parliamentary
Oaths Act 1868.
103 Compulsory Church Rates Abolition Act 1868.
104 The last attempt to prosecute a Dissenter for teaching without a licence was in 1733
(the Rev Philip Doddridge in Northampton). The Dissenters’ Relief Act 1779 permitted
tutors and schoolmasters to teach without needing to be licensed.
100
19
the University of London had been founded (in 1826) with the express purpose
of providing a secular university education that was open to all. However
Nonconformists were excluded from Oxford and Cambridge universities until the
1850s,105 and the terms on which their children were admitted into schools, and
the fact that many schools continued to be controlled by the Church of England,
even when funded with supposedly non-denominational ‘public’ money, were
continuing sources of grievance.
A-G v Cullum106 concerned a charity named the Guildhall Feoffment of
Bury St Edmunds. This had originally been founded in the reign of Edward IV for
the benefit of the whole community of the town, and had been added to by
various donors over the years. By 1810, the trust property was being carelessly
mismanaged, and an order was made appointing new trustees and restating the
trust purposes with the Roman Catholic purposes omitted. 107 In 1836 an
information was filed with the Attorney-General by town inhabitants, alleging
further mismanagement of the trust property, and Langdale MR directed that the
Chancery Master should take an account of the property, and make a scheme for
its future management, and for application of the trust income, which by then
amounted to £2,110 pa.108 The Master set out a scheme which increased the
charities to the poor not receiving parochial relief,109 increased the allowances
paid to the parochial clergy, made an annual gift to the town hospital, and made a
gift of £300 to build a new church. The remaining funds were to be used to found
three schools, for boys and girls, and open to the children of parents of all
religious denominations.110 He proposed that these should be closed on Sundays,
that a portion of the daily school hours should be set apart for reading Scripture
lessons, but that no other religious instruction should be undertaken. He did not
mention the religious creed of the masters and mistresses.
The trustees objected to these arrangements, and sought a declaration
that the masters and mistresses should be members of the Established Church;
that for at least an hour each day they should give general religious and moral
instruction to all the scholars in such books as the governors should select; that
Oxford University Reform Act 1854; Cambridge University Reform Act 1856.
(1842) 1 Y & C 411, 62 ER 948.
107 The Catholic Relief Act 1791 abolished penalties for public adherence to Catholicism,
but trusts for the furtherance of Catholicism remained void because they were illegal
per se: Cary v Abbot (1802) 7 Ves Jun 490, 32 ER 198. The Roman Catholic Charities Act
1832 then retrospectively validated gifts for many Catholic purposes, including schools
and churches, but gifts for the saying of requiem masses remained invalid as they were
still deemed to be for a ‘superstitious use’: West v Shuttleworth (1835) 2 My & K 684, 39
ER 1106; Heath v Chapman (1854) 2 Drew 423, 61 ER 781; though cf Re Michel's Trust
(1860) 28 Beav 39, 42-3; 54 ER 280, 281-2. The hardship of this was abated by the
Roman Catholic Charities Act 1860, s 1, by which the courts were empowered to apply
funds settled for a superstitious use for the benefit of Catholics at their discretion.
Trusts for Protestant Nonconformist purposes were made legally charitable by
the Toleration Act 1688, subject to the proviso that nothing in them should assist
persons denying the Trinity; this proviso was removed by the Unitarian Relief Act 1813.
Trusts to advance Judaism were made legally charitable by the Jewish Relief Act 1846.
108 A-G v Cullum (1836) 1 Keen 104, 48 ER 246.
109 As to this, note the discussion in the text to n 150 below.
110 The Guildhall Feoffment Primary School is still in operation in Bury St Edmunds:
www.guildhallfeoffment.org.
105
106
20
on Sundays they should give instruction in Church of England doctrine to those
children whose parents did not object; that the children should go once every
Sunday to the parish church or other place of worship according to their creeds;
and that those who attended the parish church should go with their teachers.
The case was heard by Knight-Bruce V-C, who held that ‘any scheme of
education without religion would be worse than a mockery’, who ‘did not …
question the equal right of every Roman Catholic and every Protestant Dissenter
in the town of Bury to a participation of all the advantages of the charity’, but
who considered that ‘religious instruction could not be provided for every class
of persons holding different religious opinions’, and that ‘if education, of course
including religious instruction, is to be provided for, … it must be according to
the doctrines and principles of the English Church.’111 He ordered the Master to
reconsider whether the scheme should include the provision of education in the
town, and if so, to provide ‘that there is to be no master, mistress or teacher, who
is not a member of the Church of England, and that no other course of religious
instruction shall be adopted than in conformity with that Church.’112
The parties then agreed to a scheme, confirmed by the Vice-Chancellor,
under which the masters and mistresses would be members of the Church of
England; an hour of religious instruction would be given every day to all the
children, being confined to the reading and explanation of the Scriptures;
instruction would be given every Sunday in the liturgy, catechism and articles of
the Church of England to those children whose parents were in communion with
the Church; and every child should be required to attend Church services twice
every Sunday, subject to the proviso that the trustees might excuse any child of
parents who were not in communion with the Church of England from church
attendance.
The scheme for the Bury St Edmunds charity formed the template for
many later schemes:113 in 1868, the Charity Commission stated that Cullum was
‘accepted as a sound and binding decision … [and] constantly followed without
argument.’114 But a different approach was taken where a trust’s founding
document required the teaching of a particular religious dogma – no conscience
clause could then be inserted as this would be inconsistent with the founder’s
A-G v Cullum (1842) 1 Y & C 411, 415-6; 62 ER 948, 950.
Ibid, 416; 951.
113 e.g. A-G v Haberdashers’ Company (1854) 19 Beav 385, 52 ER 399; A-G v Clifton
(1863) 32 Beav 596, 600; 55 ER 234, 236; Sixteenth Report of the Charity Commissioners
for England and Wales PP 1868-69 (HC No 4117) 20-32 (scheme for the Trevilson
Charity in East Newlyn, Cornwall). The courts sometimes removed terms on religious
instruction from schemes and left this to the discretion of the master, on the ground that
this ‘tends to prevent those feelings of offence which are too apt to arise on such a
subject’: A-G v Bishop of Worcester (1851) 9 Hare 328, 367-8; 68 ER 530, 549 (Turner
V-C), following Re King’s Grammar School, Warwick (1845) 1 Ph 564, 567-8; 41 ER 747,
748 (Lord Lyndhurst LC). However, the courts expected the master to exempt the
children of Dissenters in these cases (this having been his previous practice); where
there was no reason to think that this would happen, it was thought preferable to
include directions for religious instruction, accompanied by a conscience clause: Re
Chelmsford Grammar School (1855) 1 K & J 543, 560-61; 69 ER 575, 582 (arguendo).
114 Sixteenth Report of the Charity Commissioners for England and Wales PP 1868-69 (HC
No 4117) 22.
111
112
21
intentions.115 These rules were reflected in the terms of the Endowed Schools Act
1869, sections 15 and 16, which allowed parents to claim exemption for scholars
from religious instruction and attendance at services, subject to a proviso in
section 19 which disallowed this where religious instruction and church
attendance were required by the original terms of the endowment, and these
terms had been observed ever since.116
Even where they were protected by a conscience clause, however,
Nonconformist and Roman Catholic parents came under considerable pressure
from Church of England teachers – and the Church kept a firm grip on teaching
appointments for the rest of the century. When making schemes that included
the appointment of new trustees, the usual practice of the courts and the
Commission was to appoint vicars and churchwardens as trustees, who would in
turn appoint Church of England teachers, even where the majority of the local
population for whose benefit a trust had originally been established had become
Dissenters in the interim.117 This may have been defensible where the provision
of Anglican religious instruction was positively required by the trust deed,118 but
it was harder to justify in cases where the original trust purposes were nondenominational. The Commission argued that vicars and churchwardens were
usually the only people in a parish with the social status, education and time that
A-G v Calvert (1857) 23 Beav 248, 255-57; 53 ER 97, 100-1; A-G v Market-Bosworth
School (1865) 35 Beav 305, 55 ER 913; cf A-G v Sherborne Grammar School (1854) 18
Beav 256, 285n; 52 ER 101, 112n. See too Seventeenth Report of the Charity
Commissioners PP 1870 (HC No 73) 28 (scheme for the Kelly College, clause 40). Where
no directions were given about the provision of religious instruction, it would not be
inferred from the fact that a settlor had belonged to a particular faith that s/he must
have meant the property to be used for instruction in the tenets of that faith: Re Ashton’s
Charity (1859) 27 Beav 115, 120; 54 ER 45, 47.
116 Considered by the PC in Re the Endowed Schools Acts, 1869, 1873, and 1874 (1878) 3
App Cas 857; Re Hemsworth Free Grammar School and Hospital (1886) 12 App Cas 444;
and Re Christ's Hospital (1889) 15 App Cas 172. See too the explanation of these sections
given in Report from the Select Committee on Charity Commission PP 1894 (HC No 221)
83-4 (QQ 1287-1301, Douglas Richmond).
117 e.g. Sixteenth Report of the Charity Commissioners for England and Wales PP 1868-69
(HC No 4117) 20-32 (scheme for the Trevilson Charity in East Newlyn, Cornwall).
118 As in e.g. Re Ilminster Free School (1858) 2 De G & J 535, 44 ER 1097. An appeal from
this decision was reported sub nom Baker v Lee (1860) 8 HLC 495, 11 ER 522; the HL
split 2:2 and so the appeal was dismissed. In the HL, at 8 HLC 513-4 (11 ER 529-30),
Lord Cranworth held that Church of England trustees were necessary only where the
carrying out of the trust purposes required the trustees to have a knowledge of Church
doctrine; this was unnecessary, and so the Ilminster School case was distinguished, in
the later case of A-G v St John’s Hospital, Bath (No 2) (1876) LR 2 Ch D 554 (concerning a
trust for the relief of poverty). The same rule applied to trusts for instruction in
Nonconformist religious doctrine; a famous example was the acrimonious and
protracted litigation over the charities founded by Lady Hewley in 1704, for different
aspects of which see Shore v Wilson (1842) 9 Cl & F 355, 8 ER 450 and A-G v Wilson
(1848) 16 Sim 210, 60 ER 854. The charities had come into the control of Unitarians by
the end of the 18th century, but Congregationalists won a ruling that a commitment to
Trinitarian doctrine was required of the trustees and those benefiting from the trusts.
This decision spurred the Unitarians to apply pressure for legal toleration of their
beliefs that bore fruit with the passing of the Dissenters’ Chapels Act 1844: Watts (n
100) 94-5.
115
22
were needed to run the trusts effectively. This was denied by Nonconformists,
whose growing wealth, social respectability and educational attainments made
the Commission’s argument seem less convincing as time passed.119
2. A-G v St Cross Hospital (1853)
Writing in 1838, the Brougham Commissioners considered that
The institutions in which the directions of the founder are most obviously
unsuited to the present times, are various hospitals established originally
for keeping up certain religious or superstitious observances.120
Hospitals were religious foundations first introduced to England in the eleventh
century. Prior to the Reformation, and indeed for a long time afterwards,
religious worship was an important part of their function. But they also typically
undertook such activities as the provision of housing and care to the sick and
debilitated poor, lepers, and the morbidly diseased, the housing of pilgrims and
travellers, and the distribution of doles.121 By the nineteenth century many
hospitals had become ecclesiastical sinecures that generated incomes for their
masters or wardens, and sometimes also for their brethren, from whom little
was expected in return. In many cases, their finances were badly mismanaged,
and it had become a widespread practice for the master to lease a hospital’s
properties on fines, i.e. to take an upfront payment in exchange for granting a
long lease of the properties at a fraction of their true worth. Reform of these
arrangements was a significant part of the charity work done by the AttorneyGeneral and the Charity Commission in the middle years of the nineteenth
century. Their orders and schemes formed part of a wider reform process led by
the Ecclesiastical Commissioners (created in 1836),122 to eliminate pluralism,
For allegations and denials of anti-Nonconformist bias by the Charity Commissioners,
see ‘Vigilans’, Nonconformists and their Rights as Citizens: Especially in Relation to the
Endowed Schools Act (London, Eliot Stock, 1873); Report from the Select Committee on
Charitable Trusts Acts PP 1884 (HC No 306) 161-3 (QQ 2498-2535, Rev Dr Henry
Crosskey), 190 (QQ 2923-6, Sir Arthur Hobhouse), 194-206 (QQ 2960-3212, Rev Dr
Henry Crosskey) and 281-2 (QQ 4536-58, Henry Longley); Report from the Select
Committee on Charity Commission PP 1894 (HC No 221) 25-6 (QQ 361-2, Sir Henry
Longley). On Crosskey, see Albert R Vogeler, ‘Crosskey, Henry William (1826–1893)’,
Oxford
Dictionary
of
National
Biography,
OUP,
2004;
http://www.oxforddnb.com/view/article/38868.
120 Thirty-Second Report of the Commissioners of Inquiry into Charities in England and
Wales PP 1837-38 (HC No 108) 5.
121 N Orme and M Webster, The English Hospital, 1070-1570 (New Haven, CT, Yale
University Press, 1995), who describe the historical forms of hospital endowment at
92-7; S Sweetinburgh, The Role of the Hospital in Medieval England: Gift-Giving and the
Spiritual Economy (Dublin, Four Courts, 2004); S Watson, ‘The Origins of the English
Hospital’ (2006) 16 Transactions of the Royal Historical Society (6th series) 75.
122 Created by the Ecclesiastical Commissioners Act 1836 and 1840.
119
23
nepotism, sinecures, and clerical absenteeism from the parishes,123 and to reduce
the large disparity in income between the richest and poorest Anglican clergy.124
To give some examples of the hospitals that were targeted by reformers,
the twenty brothers and sisters at the Hospital of Archbishop Holgate in York
were by 1850 paid an annual increment of £94 apiece, an income which the
Brougham Commissioners thought ‘unnecessarily and mischievously large for
persons in that station of life’.125 By the same date, the Magdalen Hospital in
Newcastle-upon-Tyne, originally established for the care of lepers, had evolved
into an institution for the relief of poor brethren, and its annual revenue was
£1,500, £700 of which went to the master and £267 to each of three brethren.126
Again, the income of the master of Christ’s Hospital, at Sherburn, near Durham,
far exceeded the costs of the establishment. The master spent the surplus on
other charitable purposes, but this expenditure entailed a breach of trust,127 and
so in 1854 the Charity Commission sought the enactment of a legislative scheme
that included the establishment of a new institution for the relief of chronic
diseases, by way of analogy to the trust’s original purpose of the relief of persons
afflicted with leprosy. This failed to pass through the House of Lords owing to the
opposition of the bishops, rallied by the Bishop of Durham, who viewed the
Commission’s proposals as an attack on clerical control over the hospital’s
endowment. However, a scheme for the allocation of the surplus was eventually
agreed following proceedings by the Attorney-General in 1857.128
The best known of the mid-century hospital scandals concerned the
Hospital of St Cross, near Winchester.129 This was widely reported in the
Further measures to address these problems included the Pluralities Act 1838, the
Ecclesiastical Duties and Revenues Act 1840, and the Deans and Chapters Act 1840.
124 The Bishop of Durham had an annual income of £19,000; the average curate was paid
£86: Hilton (n 100) 524. On Church reform, see KA Thompson, Bureaucracy and Church
Reform: The Organisational Response of the Church of England to Social Change 18001965 (Oxford, OUP, 1960); GFA Best, Temporal Pillars: Queen Anne’s Bounty, the
Ecclesiastical Commissioners, and the Church of England (Cambridge, CUP, 1964).
125 Second Report of the Royal Commission for Inquiring into Those Cases Which Were
Investigated by, and Reported upon, by the Charity Commissioner, but not certified to the
Attorney-General PP 1851 (HC 1371) 5-6.
126 Fifth Report of the Charity Commissioners for England and Wales PP 1858 (HC No
2346) 27. See also A-G v Pretyman (1841) 4 Beav 462, 49 ER 418 (concerning the
preferment by Bishop Tomline of Lincoln of his son to the wardenship of the Meer
Hospital); A-G v Wyggeston Hospital (1849) 12 Beav 113, 50 ER 1003; A-G v St John's
Hospital, Bath (No 2) (1876) 2 Ch D 554.
127 Cf text to n 22.
128 Supplemental Report of the Charity Commissioners for England and Wales PP 1854-55
(HC No 1966) 4-18; Copies of All Correspondence between the Bishop of Durham and the
Charity Commissioners Concerning the Scheme for Sherburn Hospital PP 1856 (HC No
134); Third Report of the Charity Commissioners for England and Wales PP 1856 (HC No
2060) 13-28; Fourth Report of the Charity Commissioners for England and Wales PP 1857
(HC No 2187) 5-6. Further discussion in Owen (n 2) 205-6; Fishburn (n 2) 748-9; CW
Gibby, Sherburn Hospital (Durham, Sherburn Hospital, 1981), reproduced online at
http://www.sherburnhouse.org/sherburn-house-charity/history.
129 The history of the case is well described in RB Martin, Enter Rumour: Four Early
Victorian Scandals (London, Faber & Faber, 1962) 137-184, from which some of the
information in the following paragraphs has been taken; a more recent account of the
123
24
press,130 and the story remains familiar today because it was an inspiration for
Anthony Trollope’s novel The Warden, published in 1855.131 St Cross Hospital
was a medieval foundation endowed for the maintenance of poor and impotent
men under the government of a master whose appointment lay in the hands of
the Bishop of Winchester.132 In 1808, Bishop North, whose own episcopal career
had been advanced at every stage by his brother, the Prime Minister Lord North,
awarded the mastership to his son, the Rev Francis North, who was the sixth Earl
of Guilford. Even by the standards of his age, Bishop North was remarkable for
the success with which he ‘extracted maximum familial advantage from his long
episcopate’:133 more than thirty livings and preferments in his gift went to
members of his family. He had previously presented Guilford to the livings of
Alresford and St Mary’s, Southampton, rich benefices from which Guilford
derived an income of some £3,500 a year, and which he did not resign until 1850
(when he sought unsuccessfully to deflect criticism of his Mastership of St Cross
by giving up his livings). North also made Guilford a prebendary of Winchester,
adding another £1,000 to his income; he resigned this post in 1827 when he
succeeded to the Earldom and estates that brought him £18,000 a year.
The St Cross Hospital’s endowment should have generated around £9,000
a year from the appropriation of tithes of various Hampshire parishes, many of
which were perpetual curacies with small stipends allotted to their incumbents.
Following his predecessors’ practice, however, Guilford leased out the tithes for
a period of three lives at a much reduced rent, on the payment of fines by the
case, also drawing on Martin’s work, appears in JJ Fishman, ‘Charity Scandals as a
Catalyst of Legal Change and Literary Imagination in Nineteenth Century England’
[2005] Michigan State LR 369, 399-409. St Cross Hospital is still in operation:
http://stcrosshospital.co.uk/.
130 The case and its aftermath are reported at the following pages and columns of The
Times, accompanied by thunderous editorializing (‘shameless perversion of one of our
noblest charities’, ‘unscrupulous cupidity’, ‘contempt for common decency’): 15
November 1849, 3f; 5 May 1853, 7c; 7 May 1853, 7b; 27 May 1853, 8a; 9 June 1853, 5b;
12 July 1853, 7e; 2 August 1853, 7f; 10 October 1853, 6b; 11 November 1853, 4f; 12
November 1853, 8c; 10 December 1853, 8e and 10e; 20 December 1853, 9f; 6 January
1854, 6c and 9a; 4 April 1854, 9b; 12 April 1854, 10d; 19 April 1854, 5e; 22 May 1854,
11f; 9 June 1854, 7f and 9c; 15 June 1854, 11a; 1 February 1855, 10a; 24 March 1855,
9c; 19 April 1855, 11c.
131 Although similar cases were also widely reported during the early 1850s, including
scandals at the Charterhouse in London and at Rochester Cathedral School: L Stevenson,
‘Dickens and the Origin of “The Warden”’ (1947) 2 Trollopian 83; GFA Best, ‘The Road to
Hiram’s Hospital: A Byway of Early Victorian History’ (1961) 5 Victorian Studies 135.
The Rochester Cathedral clergy had diverted scholarship funds to themselves, and were
denounced in R Whiston, Cathedral Trusts and their Fulfilment (2nd edn 1849), which ran
through 5 printings: see RCM Arnold, The Whiston Matter. The Reverend Robert Whiston
versus the Dean and Chapter of Rochester (London, Rupert Hart-Davis, 1961); Fishman
(n 129) 389-399.
132 The history of the hospital is set out in Thirty-first Report of the Commissioners of
Inquiry into Charities in England and Wales PP 1837-8 (HC 103) 843-859. See too LM
Humbert, Memorials of the Hospital of St Cross and the Almshouse of Noble Poverty
(London, Parker & Co, 1868) 14-52. Humbert succeeded to the mastership of St Cross
after Guilford’s resignation in 1855.
133 N Aston, ‘North, Brownlow (1741–1820)’, Oxford Dictionary of National Biography,
OUP, 2004; online edn, Jan 2008; http://www.oxforddnb.com/view/article/20292.
25
lessees. 2d in the pound went to each brother, 6d to the chaplain, and the rest
went to Guilford. It is hard to form a clear picture of his average yearly income
from the mastership, but it seems likely that this was around £2,000-£3,000.134
In 1843, Guilford attracted hostile newspaper comment when he was paid
a fine of £13,000 for a long lease on the tithes of Crondal and other parishes that
were collectively worth up to £2,000 a year; £10,000 of this went to Guilford.135
After that, the size and sources of his income as master of the hospital were
criticized by the press with growing frequency, their interest quickened by a
flow of letters written by a reform-minded retired clergymen, the Rev Henry
Holloway, who had come to live in the parish of St Faith to which the mastership
of St Cross was annexed, and who made it his business to investigate the
hospital’s affairs and to denounce Guilford through the columns of the
newspapers for the next 15 years. By 1849, the management of the hospital’s
finances had become such a notorious scandal that the Radical MP, Joseph Hume,
successfully sponsored a Parliamentary resolution for an inquiry. This led the
Attorney-General to file a Chancery bill against Guilford for maladministration of
the hospital’s funds, seeking an order for its future regulation and management.
The case was heard by Romilly MR in 1853.136 Documents relating to the
hospital’s 700 year history were considered, and particular attention was paid to
a document known as the Consuetudinarium, or Customary, which had been
executed by the master and brethren in 1696, and which stipulated that the
master was entitled to whatever income remained after the costs of maintaining
the brethren were met and certain other charitable purposes paid for. The
Attorney-General contended that this document could not have been validly
executed as it was inconsistent with the charitable intentions of the hospital’s
founders, which had been for the income to be applied to the relief of the poor.
Guilford answered that the Consuetudinarium had been written with the consent
of the Bishop of Winchester, that the money he had received had been paid in
accordance with a usage that had continued for 150 years with the Bishop’s
approval, and that the court had no jurisdiction to interfere with the affairs of the
hospital since these fell within the Bishop’s visitorial jurisdiction. The Bishop of
Winchester intervened in the case to support the latter argument.
Romilly MR gave judgment on 1 August 1853 (which was the day when
the Charitable Trusts Act 1853 passed into law). He rejected all of Guilford’s
arguments, holding that
a more barefaced and shameless document than this ‘Consuetudinarium’
could not well, in my opinion, have been framed, nor could a more
manifest and probably wilful breach of trust have been committed. …
To say that a practice so created, and under such circumstances, merely
because it has continued for a century and a half, is to prevail against the
manifest trusts imposed by the original foundation, would be contrary to
the doctrine daily enforced by this Court, and would be to give a direct
premium to fraud in the administration of charities.137
Martin (n 129) 160; Humbert (n 132) 83-4.
The Globe, 21 October 1843, cited in Martin (n 129) 166.
136 A-G v St Cross Hospital (1853) 17 Beav 435, 51 ER 1103.
137 17 Beav 464, 51 ER 1113-4.
134
135
26
Nor did he accept that the jurisdiction of the court was taken away by reason of
the Bishop’s visitorship. He directed that a scheme should be made for the future
administration of the charities, but declined to order an account against Guilford
for money received before the initiation of proceedings, as the Attorney-General
had not asked for this in the information.
A scheme for the management of the hospital was agreed and approved
by the court in June 1855.138 Of particular note are provisions which took the
management and control of the hospital’s property out of the master’s hands and
placed them in the hands of trustees. It was also stipulated the property should
from time to time be let and demised at the best annual rent or rents that
can be obtained for the same … without taking any fine, or premium, on
the making of any such demise.
The same provision can be found in schemes written by the Charity Commission
in many subsequent cases where hospital and other charity trustees had adopted
into the practice of leasing on fines to the detriment of the trust income.139 The
scheme for St Cross Hospital also provided that the hospital should continue to
house and feed the brethren, who should be poor men above the age of fifty, not
in receipt of parish relief – this was also a standard provision in schemes for the
relief of poverty, for reasons that are discussed in the next section. 140 The master
was henceforth to receive a salary of £250, and to perform Sunday services in the
chapel for the brethren and the parishioners of St Faith.
The large costs of the trial were assessed against Guilford, in his capacity
as master, and further costs were later incurred to obtain an injunction against
Holloway, who took it on himself in 1854 to hold services in the hospital chapel
for the St Faith parishioners, on the ground that insufficient provision had been
made for their pastoral care by the hospital chaplain.141 In the end, the legal bill
exceeded £7,500, only £4,500 of which was recovered out of the fines received
by Guilford between the filing of the information in 1849 and the date of
judgment. The remaining debt was to drain the hospital’s resources for years
afterwards.142
Guilford retired from the mastership of St Cross in March 1855, and died
in 1861, at the age of 89. He had outlived his time: the pluralistic arrangements
from which he derived such a large income were not unusual in the eighteenth
century, but by the middle of the nineteenth century they were widely deplored,
albeit that there were those, like Anthony Trollope, who questioned the motives
of the campaigners and newspaper editors who denounced them and disliked
the stridency with which they advanced their cause.
Details of the scheme can be found in Humbert (n 132) 82-4.
Cf clause 5 of the Commission’s proposed scheme for Sherburn Hospital, reproduced
in Supplemental Report of the Charity Commissioners for England and Wales PP 1854-55
(HC No 1966) 9-10.
140 See the text after n 150.
141 A-G v St Cross Hospital (1854) 18 Beav 601, 52 ER 236; affirmed (1856) 8 De GM & G
38, 44 ER 303.
142 Humbert (n 132) 83n; Martin (n 129) 173-4.
138
139
27
3. Re Campden Charities (1881)
This case has already been mentioned. 143 It concerned two testamentary
charitable trusts, the first settled by Viscount Campden in 1629 and the second
by his widow in 1643.144 He bequeathed £200 ‘to be yearly employed for the
good and benefit of the poor of the town of Kensington for ever’, a legacy that
was used to buy an estate at Shepherd’s Bush. She left £200 on trust to buy lands
with an annual value of £10,
one half of which should be applied from time to time for ever for and
towards the better relief of the most poor and needy people that be of
good life and conversation that should be inhabiting within the … parish
of Kensington, and the other half thereof should be applied yearly for ever
to put forth one poor boy or more, being of the said parish, to be
apprenticed. The said £5 due to the poor to be paid to them half-yearly for
ever, at Lady-day and Michaelmas, in the church or the porch thereof at
Kensington.
Viscountess Campden’s legacy was used to buy an estate in Kensington. A third
estate in the area was also acquired in 1651 for £45, and one hundred years later,
in 1757, all three estates were vested in trustees ‘for the use and benefit of the
poor of good life and conversation of the town and parish of Kensington from
time to time for ever, and as to one quarter of the said rents and profits for the
putting out one or more boy or boys of the said parish apprentice or apprentices’.
Time passed and the character of the neighbourhood changed. The small village
of Kensington became a thickly populated suburb of London, with many middle
class residents. By 1879, the rental income on the charity property had risen to
about £3,600, and so the Charity Commission agreed a scheme with the trustees
which closely followed the standard format devised by the Commission for the
many dole charities whose funds they applied cy-près at that time.145
This provided that after the apprentice fees mentioned in the trust deed
had been paid, the trustees should use no more than half of the remaining
income for some or all of these purposes: (a) £200 or less to be paid to ‘poor
deserving inhabitants’ of the parish in cases of sudden accident, sickness, or
exceptional loss or distress; (b) £300 or less to be paid to any dispensary,
infirmary, or hospital, or for providing trained nurses, for the purpose of caring
for the parish poor; and (c) £600 to be paid as pensions to deserving and needy
inhabitants of the parish who had lived there for not less than 7 years, and who
had not received poor law relief, and who could not maintain themselves owing
to age, ill-health, accident, or infirmity; and (d) the rest to be applied towards the
purchase of annuities, or in aid of income or other means of support possessed
by the recipient, which had been produced by his own exertions and prudence.
The other half of the income, together with whatever portion of the first half had
not been spent, was to be used for the education of children in the parish, in one
or more of the following ways: (a) to pay apprenticeship fees and/or to buy
See text to n 38.
Still going strong: www.campdencharities.org.uk.
145 Report of Select Committee on the Charitable Trusts Acts PP 1884 (HC No 306) 19-26
(QQ 253-347, Henry Longley).
143
144
28
suitable outfits needed by poor boys starting employment; (b) to pay no more
than £6 each to encourage children above the age of 11 to remain in elementary
school;146 (c) to pay exhibitions of no more than £30 each to cover the cost of 3
years’ tuition at a higher school; and (d) to pay for lectures or evening classes.
There was also a power to pay for the instruction of deaf and dumb children.
Some of the parishioners objected to this scheme, chiefly on the ground
that it diverted a large portion of the trust income to educational purposes when
there was no lack of deserving poor people in the parish to whom the money
could have been distributed. They petitioned for an order that the scheme should
be altered, and the old mode of applying the trust income restored. Hall V-C
found for the parishioners, and ordered that the Commission should reframe its
scheme. Part of the income of Viscount Camden’s charity could be applied to
education, as he had not specified the mode in which poverty should be relieved
under his trust. But Viscountess Camden had done this, and as it was still
possible to pay apprenticeship fees, half the income of her trust should be used
for this purpose; the other half should be used to buy pensions.
The Court of Appeal disagreed. The expenditure of £1,100 per annum on
the purchase of apprenticeships went far beyond anything that Viscountess
Campden could have contemplated. Moreover, it was no longer the case, as in her
lifetime, that those exercising a trade must have served an apprenticeship.
Apprenticeships were becoming obsolete. Some masters still took apprentices,
and some boys still wished to serve them, and so some money could still be spent
on this purpose. But this was a case where
the means to an end require[d] change, the end being kept in view; the
end to be kept in view being such an education to be given the young poor
of the parish as [would] enable them to gain their livelihood in an honest
and respectable manner.147
Hence the cy-près application of the bulk of the apprenticeship funds to more
general educational purposes was appropriate.
So, too, was the cy-près application of the dole money. Doles ‘tend[ed] to
demoralise the poor and benefit no one’ and ‘the extension of doles [was] simply
the extension of mischief.’148 Viscountess Campden had wanted 50 shillings a
year to be distributed in sums that would make a difference to a few deserving
poor people in a small village, chosen by churchwardens who knew who they
were, not that 500 sovereigns should be spread around the poor of a large town
every half year. The only consequence of that would be ‘a pauper population
flocking into Kensington, merely attracted there by the existence of these
charities, a thing which ha[d] happened in some parishes in England’.149 Indeed,
the trustees themselves had recognised this, since for many years past they had
used the trust money to pay pensions to a few chosen paupers, rather than
distributing it in the small sums directed. In the light of all this, the Commission’s
scheme was justified and should be upheld.
This money would be paid to parents to compensate them for lost wages that their
children would otherwise have brought into the household.
147 Campden Charities (n 38) 326 (Jessel MR).
148 Ibid 327.
149 Ibid 329.
146
29
The scheme made in the Campden Charities case, and the terms of Jessel
MR’s judgment, were characteristic of ‘official’ attitudes towards the role of
charity in relieving poverty during the Victorian period.150 Charitable relief of the
deserving poor was desirable, but relief of the undeserving was a matter for the
poor law: they would be provided for, but in conditions that would incentivize
them to sell their labour rather than rely on parish relief. Against this
background, the distribution of doles (i.e. gifts of money, food or clothing), even
to the deserving poor, came to be seen as ‘demoralizing’ because it made the
recipients over-reliant on hand-outs. For this reason the authors of the 1834
Report on the Poor Law wrote that dole charities ‘have a quality of evil peculiar
to themselves’,151 and Edwin Chadwick wrote in the Edinburgh Review that
If any trustee of a public charity for the distribution of doles, instead of
distributing the substance as intended, consumed it in good cheer for
himself and friends; and … any trustee of a charity of foundlings, instead
of applying the substance to those purposes, kept a mistress with it [he]
really produced less mischief … as compared with a literal administration
of the trust, and was pro tanto a benefactor to the public.152
The same arguments were repeatedly made in the Charity Commission’s
annual reports153 and decisions of the courts.154 At times they were inconsistent:
the distribution of small sums was denounced as pointless because it made no
difference to the recipients; yet it was also said to attract the poor into
neighbourhoods where the distributions were made. The latter argument was
repeatedly made by Arthur Hobhouse.155 It was also trotted out by many other
There is an extensive secondary literature on this subject, including G Himmelfarb,
The Idea of Poverty: England in the Early Victorian Age (London, Faber & Faber, 1984)
and Poverty and Compassion: The Moral Imagination of the Late Victorians paperback
edn (New York, NY, Vintage Books, 1992); J Lewis, The Voluntary Sector, the State, and
Social Work in Britain (Aldershot, Edward Elgar, 1995); LH Lees, The Solidarities of
Strangers: The English Poor Laws and the People, 1700-1948 (Cambridge, CUP, 1998); A
Kidd, State, Society and the Poor in Nineteenth-Century England (Basingstoke, Macmillan
Press, 1999); FD Roberts, The Social Conscience of the Early Victorians (Stanford, CA,
Stanford University Press, 2002) 139-182.
151 Report from His Majesty’s Commissioners for Inquiring into the Administration and
Practical Operation of the Poor Laws PP 1834 (HC No 44) 204, adding that ‘the places
intended to be favoured by large charities … attract an undue proportion of the poorer
classes, who, in the hope of trifling benefits to be obtained without labour, often linger
on in spots most unfavourable to the exercise of their industry.’
152 E Chadwick, ‘The New Poor Law’ (1836) 63 Edinburgh Review 495-6.
153 Fifth Report of the Charity Commissioners for England and Wales PP 1858 (HC No
2346) 18; Sixteenth Report of the Charity Commissioners for England and Wales PP 186869 (HC No 4117) 6; Report from the Select Committee on Charitable Trusts Acts PP 1884
(HC No 306) v; Fortieth Report of the Charity Commissioners for England and Wales PP
1893-4 (HC No 6960) 17 ff. See too Thirty-Second Report of the Commissioners of Inquiry
into Charities in England and Wales PP 1837-38 (HC No 108) 5.
154 A-G v Marchant (1866) LR 3 Eq 424, 431; Re Stanes’ Will (1853) 21 LT (OS) 261; Re
Foveaux [1895] 2 Ch 501, 505 (quoted above in the text to n 9).
155 e.g. Sir A Hobhouse, The Dead Hand (London, Chatto & Windus, 1880) 38-41, 96-8,
195-215.
150
30
enemies of dole charities, even where it was implausible that the trustees’
expenditure would have had this effect. For example, at the end of the century
opponents of a dole charity in Knaresborough claimed that the pensions paid by
the trustees encouraged an undue number of old people to settle in the area. Yet
the pensions were small and hard to secure owing to the number of applicants,
and as Mae Baker and Michael Collins have written of this episode,
it seems unlikely that such little reward would have enticed droves of old
women to move into Knaresborough but, nevertheless, [in their report]
the Charity Commissioners could not resist highlighting local middle-class
anxieties that so closely mirrored contemporary prejudices.156
Nor would it be right to think that contemporary opinion with respect to
dole funds all went in one direction. The recipients of doles generally wished
them to continue, and protested if the money was withdrawn and applied to
other purposes.157 Testators continued to create new dole charities in their
wills,158 emergency appeals raised sums for the provision of direct temporary
relief to the poor at times of large-scale unemployment,159 and the trustees of
large dole charities continued to distribute doles in accordance with the trust
deed, a practice that the Charity Commission deplored but could do nothing to
prevent, although they would have liked to do so.160 The fact was that many
M Baker and M Collins, ‘The Governance of Charitable Trusts in the Nineteenth
Century: The West Riding of Yorkshire’ (2002) 27 Social History 162, 175-7. See too
Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 144-46
(QQ 2158-2209, Rev Robert Godfrey Faussett): dole distribution did not attract poor
people into the parish as there was nowhere for them to live.
157 Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 117
and 120 (QQ 1659-60, 1667 and 1730, John Moxon Clabon) and 274 (QQ 4002-3, Robert
Leader); see too Report from the Select Committee on Charity Commission PP 1894 (HC
No 221) 255 (QQ 3706 and 3708, Jesse Collings MP): doles distributed as an annual
Christmas treat ‘give an enjoyment to the poor people which they value, and which can
be obtained in no other way’; ‘wherever an attempt is made to abolish them that
attempt is met by the most bitter opposition, and where they have been abolished there
is a sense of injustice rankling in the minds of the people’.
158 Twenty-third Report of the Charity Commissioners for England and Wales PP 1876 (HC
No 1455) 5: ‘Though the evil arising from such gifts is very generally admitted, bequests
to establish [doles] are still not infrequent’; Report of Select Committee on Charitable
Trusts Acts PP 1884 (HC No 306) 24 (Q 321, Henry Longley): ‘The late Mr Charles Reade,
who died the other day, intimated … his intention to found a pure and simple dole
charity. His solicitor came to us to know something about it; we of course had no power
to prohibit it, but we ventured to suggest that [he act differently] … ; he told us, in polite
language, to mind our own business; and he founded a pure and simple dole charity.’
159 Over £1,275,000 was collected and distributed during the Lancashire Cotton Famine
of 1861-1865: Owen (n 2) 512, citing WO Henderson, The Lancashire Cotton Famine,
1861-1865 (Manchester, Manchester University Press, 1934) ch 4. And nearly £80,000
was paid into the Mansion House Fund for the poor raised by the Lord Mayor of London
in 1885-1886: R Whelan, Helping the Poor: Friendly Visiting, Dole Charities and Dole
Queues (London, Civitas, 2001) 59-89.
160 Report of Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) x: trustees
of two large charities in Tewkesbury with annual income amounting to over 600l refuse
to join scheme made by Commission in 1879 for amalgamating the town’s charities and
156
31
people believed the payment of doles to be a Christian duty that reinforced and
validated social bonds between rich and poor, and nothing that was said by the
proponents of ‘scientific charity’ could make them change their minds.
4. A-G v Day (1900)
An associated issue was the use of charitable endowments to pay the poor rate.
The Charity Commission objected to this, partly because charitable funds were
meant to be used for the relief of the deserving rather than the undeserving poor,
and partly because it effectively reduced the poor rate that would otherwise
have been payable by taxpayers in the area and it therefore enured to the benefit
of rich taxpayers rather than poor people in the locality.161 This objection was
also made to other applications of charity property that reduced the tax burden
on the rich. For example, once the Education Act 1870 had obliged ratepayers to
pay for elementary education, the Charity Commission insisted that trusts to
provide educational benefits to poor children should not be applied to the
general maintenance of elementary schools, and should instead be used to pay
individual children to stay at elementary schools for longer (rather than leaving
to work) or to fund scholarships to support entry into secondary education.162
However, it became increasingly difficult to apply this principle in a world where
the burden of taxation was increasing and the idea was beginning to take hold
that local government bodies should take responsibility for the provision of civic
amenities and other benefits to their citizens out of tax revenues.163
persist in ‘dispens[ing] their funds in an objectionable manner’; other examples are
given at 28-30 (QQ 368-82 and 386-407, Henry Longley); see too Report from the Select
Committee on Charity Commission PP 1894 (HC No 221) 31 (Q 462, Sir Henry Longley):
‘the diversion of doles to what we consider more useful purposes is at least as resolutely
opposed [as before], and in some parts of the country, particularly the eastern counties,
even more strongly opposed than ever.’
161 e.g. Third Report of the Charity Commissioners for England and Wales PP 1856 (HC No
2060) 8-9. See too First Report of the Commissioners ‘for inquiring into those cases which
were investigated, and reported upon, by the Charity Commissioners, but not certified to
the Attorney-General’ PP 1850 (HC No 1242) 9: ‘The application of the income of
charitable foundations in aid of the poor rates has long been settled to be highly
objectionable, as being in effect a relief to the rich and not to the poor’; Report from the
Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 180 (QQ 2819-20, Sir
Arthur Hobhouse). And cf A-G v Marchant (1866) LR 3 Eq 424, 431 (Kindersley V-C):
‘The poorest class of all is not allowed to participate … charities [for the relief of
poverty], because the court, in such cases, always excludes those who are in the receipt
of parochial relief, inasmuch as that would be a relief to the poor rates, and so a charity
to the ratepayers and not to the poor.’
162 Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 7980 and 86-7 (QQ 1009, 1034, and 1127-1139, Henry Longley) and 233 (Q 3646, Douglas
Richmond). Cf Re Prison Charities (1873) LR 16 Eq 129, 149-150: scheme to build
industrial school should not be approved because such schools were already being built
out of public funds; hence the scheme ‘would be to apply the charity revenues in aid of
taxes and rates’.
163 Ibid 180 (QQ 2819-20, Sir Arthur Hobhouse): ‘every private alms-giver [incidentally
removes the burden of paying for poor relief from the ratepayers, and] … I do not
believe it to be possible to apply [the principle against this] in its integrity. The great
object is that the endowment shall not be administered with the view that there shall be
a direct relief of the rates. The funds shall not be applied to pay the rate for one thing.’
32
Another consequence of the growing power of local government bodies
following the enactment of the Local Government Act 1888 was that attitudes
changed towards the question whether borough council representatives should
be appointed trustees of municipal charities founded for the benefit of the local
inhabitants. In many towns, the revenues of municipal charities had substantially
exceeded those of the municipal corporation for centuries. For example, in the
mid-1830s the combined incomes of the municipal charities of the principal
West Riding towns were as follows: Sheffield £6,000; Leeds £4,800; Wakefield
£3,000; Halifax £1,500; Doncaster £900; Ripon £600; Pontefract £500. With the
rare exception of Doncaster Corporation (nearly £12,000), the incomes of the
municipal corporations were much smaller: for example, Leeds £200; Ripon
£150; Pontefract £160.164 Furthermore, the functions performed by the charity
trustees were effectively the same as those of a local government body. As the
Charity Commission wrote in 1897 of Rotherham’s endowed charities,
Since 1589, they have … combined the duties of a town council, a local
board of health, a board of guardians, market commissioners, road
trustees; they have regulated the commons, supplied the town with water,
maintained a number of different officials [and] … built town halls and
schools.165
Since the enactment of the Municipal Corporations Reform Act 1836,
sections 71-73, however, the administration of charities had been severed from
the jurisdiction of borough corporations. This was an anti-corruption measure
enacted on the recommendation of the Royal Commission on Municipal
Corporations which had reported the previous year.166 As a result of the 1836
legislation, borough corporations were compulsorily retired from the
trusteeship of municipal charities and independent trustees were appointed.167
By the last decades of the century, however, the reputation of borough councils
had recovered, and many borough councillors were keen to take control of, or at
least to have a say in the decisions taken by the trustees of, charitable trusts to
provide amenities to the borough inhabitants.
This led to a series of battles with the Charity Commission and the courts,
who gradually retreated from the position that a sharp distinction should be
K Grady, ‘The Records of the Charity Commissions: A Source for Urban History’
(1982) 9 Urban History 31, 32, citing Analytical Digest of the Reports of the
Commissioners of Inquiry into Charities PP 1843 (HC No 000) 672-719 and Reports from
Commissioners on Municipal Corporations in England and Wales PP 1835 (HC No 000)
1615-24, 1671-9,1705-10 and 1491-1507.
165 Returns Comprising the Reports Made to the Charity Commission in the Result of an
Inquiry held in Each of Certain Counties into Endowments Subject to the Provisions of the
Charitable Trusts Acts, 1853-1894 PP 1897 (HC No 000) 369-70, quoted in Grady (n 164)
32.
166 First Report of the Commissioners Appointed to Inquire into the Municipal Corporations
in England and Wales PP 1835 (HC No 116) 47-8.
167 e.g. the Bristol Corporation was responsible for administering the endowment funds
of 3 schools, 3 almshouse charities, and 57 other charities that were chiefly involved in
gifts to the poor; a new body of trustees was appointed to run all of these charities,
which are still in operation today: www.bristolcharities.org.uk/history-pages.
164
33
maintained between the publicly funded provision of benefits by government
bodies out of tax revenue and the provision of other benefits by charity trustees.
For example, in the early 1880s the Commission refused to allow Birmingham
Corporation the right to nominate a majority of the trustees of Lench’s Charity,168
which maintained 150 almshouses in the borough.169 Yet a decade later it had
become the Commission’s regular practice to appoint trustees nominated by
borough corporations when making schemes. 170 Again, in A-G v Talbot,171
decided in 1892, Chitty J refused to let Leeds Corporation take control of a trust
for maintaining the highways of Leeds. But in A-G v Day,172 decided in 1899,
North J held that the income of a trust for the repair of a road should be paid to
Cambridgeshire County Council and Chesterton District Council, upon which
responsibility for maintenance of the road had been imposed by the 1888 Act.
Significantly, the judge in the latter case declined to hold that the purpose of the
trust had failed as a consequence of the legislation imposing a duty on the two
councils to maintain the road. It was argued that once they had become
responsible for the repairs, the trust fund was no longer required for the same
purpose. North J did not accept this, in a decision that prefigured twentieth and
twenty-first century debates about the allocation of overlapping responsibilities
for the provision of benefits between state and voluntary bodies, and the legal
requirement that charities must be independent of government.173
E. COMMENTARY
This paper has discussed the legal measures that were taken during the Victorian
period to redirect charitable trust funds from the purposes specified in the trust
deed into new purposes that were thought to be more socially useful. The point
has been to gain a better understanding of the law which governed cy-près
orders and schemes by examining the social, political and ideological contexts in
which they were made, and the policy objectives pursued by the Chancery judges
and Charity Commissioners.
Some general themes emerge from the discussion: the distinctly religious
assumptions and outlook of those charged with the oversight of charity trustees,
and, indeed, of the trustees themselves, not only of trusts for religious purposes,
Still in operation: www.lenchs-trust.co.uk.
Report from the Select Committee on Charitable Trusts Acts PP 1884 (HC No 306) 96-7
and 126-32 (QQ 1332-41 and 1808-1870, Henry Longley).
170 Report from the Select Committee on Charity Commission PP 1894 (HC No 221) 26-7
(QQ 375-384, Sir Henry Longley).
171 The Times, 11 April 1892, p 3 col E.
172 [1900] 1 Ch 31.
173 See e.g. IRC v Oldham Training and Enterprise Council [1996] STC 1218; Charity
Commission, Decisions to Register Trafford Community Leisure Trust and Wigan Leisure
and
Culture
Trust,
21
April
2004,
http://www.charitycommission.gov.uk/media/101029/trafforddecision.pdf;
Charity
Commission,
Independence
of
Charities
from
the
State
(RR7),
http://www.charitycommission.gov.uk/media/95209/rr7text.pdf; Charity Commission,
Charities and Public Service Delivery: An Introduction and Overview (CC37),
http://www.charitycommission.gov.uk/detailed-guidance/working-with-otherorganisations/charities-and-public-service-delivery-an-introduction-and-overviewcc37/.
168
169
34
where one would expect this, but also of trusts for the relief of poverty and trusts
for the advancement of education; the widespread belief that measures were
needed to guard against the moral frailty, if not the moral deficiency, of the poor;
and the change in attitude that gradually took place regarding the desirability of
government involvement in the resolution of social problems. For the light which
they throw on these and other aspects of civil society and the ‘moving frontier’
between state and voluntary effort during the nineteenth century,174 the cases
which have been studied supplement and complement many of the other sources
which have been drawn upon by social historians of the period, in their studies
of Victorian philanthropic activity,175 self-help bodies,176 altruistic associational
campaigns for moral reform (temperance, social purity, cruelty provision),177
and the Charity Organisation Society.178
When one looks at the orders and schemes made by the courts and the
Charity Commissioners, and the partially successful efforts of the Commissioners
to acquire even wider powers to reallocate charitable property, it is striking how
confident they were that they were doing the right things and that they were the
right people to be doing them. However there were paradoxical and problematic
aspects to their activities. One is that most judges were reluctant to stretch the
rules on cy-près to permit the reallocation of trust funds where the original trust
purposes could still be performed. This reluctance was born out of a respect for
the rights of property owners to choose how to dispose of their own property, an
attitude which was also reflected in the dislike of taxation that was generally felt
at the time. Yet the Commissioners believed that the wider social interest lay in
empowering them to ignore the choices made by trust settlors, to expropriate
charitable trust funds and to reallocate them in accordance with modern
thinking on social welfare. This reminds us that despite the Victorians’
commitment to the rights of property owners, support for redistributive
measures could be mustered where the choices made by owners were perceived
to be incompatible with the public interest. Other examples of this phenomenon,
dating back to the 1830s, are the commutation of tithes,179 the (compensated)
G Finlayson, Citizen, State, and Social Welfare in Britain 1830-1900 (Oxford, OUP,
1994).
175 e.g. A Summers, ‘A Home from Home: Women’s Philanthropic Work in the Nineteenth
Century’ in S Burman (ed) Fit Work for Women (London, Croom Helm, 1979); FK
Prochaska, Women and Philanthropy in Nineteenth Century England (Oxford, OUP, 1980);
FK Prochaska ‘Philanthropy’ in FML Thompson (ed), Cambridge Social History of Britain
1750-1950, vol 3: Social Agencies and Institutions (Cambridge, CUP, 1990).
176 e.g. PHJH Gosden, The Friendly Societies in England 1815-1875 (Manchester,
Manchester University Press, 1971); PHJH Gosden, Self-Help: Voluntary Associations in
the 19th Century (London, BT Batsford Ltd, 1973); S Cordery, British Friendly Societies,
1750-1914 (Basingstoke, Palgrave Macmillan, 2003).
177 e.g. B Harrison, Drink and the Victorians: The Temperance Question in England, 18151872 (London, Faber & Faber, 1973); MJD Roberts, Making English Morals: Voluntary
Association and Moral Reform in England, 1787-1886 (Cambridge, CUP, 2004).
178 e.g. R Humphreys, Sin, Organised Charity and the Poor Law in Victorian England
(Basingstoke, Macmillan, 1995); J Lewis, The Voluntary Sector, the State, and Social Work
in Britain (Aldershot, Edward Elgar, 1995); R Humphreys, Poor Relief and Charity, 18691945: The London Charity Organisation Society (Basingstoke, Palgrave, 2001).
179 EJ Evans, The Contentious Tithe: The Tithe Problem and English Agriculture, 1750-1850
(London, Routledge and Kegan Paul, 1976).
174
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dispossession of West Indian slave owners, 180 reform of the lighthouse
system,181 and the statutory grant of compulsory purchase powers to railway
promoters.182
As administrative officials who were charged with adjudicative functions
and invested with quasi-judicial powers, the Charity Commissioners were hardly
unusual for their time: similar bodies of the Victorian regulatory state included
the factory inspectors, the income tax commissioners, and the lunacy
commissioners.183 To modern eyes, however, it is striking that the questions
which the Charity Commissioners and the courts both had to decide in cy-près
cases were not exclusively legal – and the same is still more obviously true of the
questions which had to be decided by the Commissioners when exercising their
powers under the Endowed Schools Acts 1869 and 1873 and the City of London
Parochial Charities Act 1883. When making orders and writing schemes in
accordance with their views on Church reform, educational reform, and welfare
reform, the courts and the Commissioners were effectively making contentious
decisions about religious and social policy on the hoof. That may have struck
contemporaries as a less surprising feature of their work than it has modern
observers, who have criticised the present-day courts and Charity Commission
for doing exactly the same thing, not only when deciding how to apply charitable
funds cy-près, but also when deciding whether the purposes of voluntary bodies
are legally charitable.184 Their Victorian predecessors were acting at a time when
the modern welfare state had not yet come into existence, when it was far less
obvious than it may appear today that the formulation of social policy should be
undertaken not by judges and administrative officials in accordance with their
own views and prejudices, however well intentioned they may be, but by elected
members of central and local government who are democratically accountable
for the decisions they make.
N Draper, The Price of Emancipation (Cambridge, CUP, 2010).
J Taylor, ‘Private Property, Public Interest, and the Role of the State in NineteenthCentury Britain: The Case of the Lighthouses’ (2001) 44 Historical Journal 749.
182 R Kostal, Law and English Railway Capitalism, 1825-1875 (Oxford, Clarendon Press,
1994) 000-000.
183 C Stebbings, Legal Foundations of Tribunals in Nineteenth Century England
(Cambridge, CUP, 2007); C Stebbings, ‘Protecting the Property of the Mentally Ill: The
Judicial Solution in Nineteenth Century Lunacy Law’ (2012) 71 CLJ 384.
184 C Mitchell, ‘Reviewing the Register’ in C Mitchell and SR Moody (eds), Foundations of
Charity (Oxford, Hart Publishing, 2000) 175, esp 000-000.
180
181
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