CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY Edited by S. J. BAILEY Fellow of St John's College, Cambridge and Rouse Ball Professor of English Law Emeritus; Barrister-at-Law, Inner Temple HISTORY OF THE LAW OF CHARITY 1532-1827 BY GARETH JONES Fellow of Trinity College and Lecturer in Law in the University of Cambridge; Barrister-at-Law, Lincoln's Inn CAMBRIDGE AT THE UNIVERSITY PRESS 1969 CAMBRIDGEU NIVERSITPYR ESS CambridgNee,w Y orkM,e lbournMea,d riCda,p eT ownS,i ngapoSraeo,P aulo CambridUgnei versPirteys s TheE dinburBguhi ldiCnagm,b ridCgBe2 8 RU,U K Publishinet dh eU niteSdt atoefsA mericbay C ambridUgnei versPirteys Nse,w Y ork www.cambridge.org Informatoinot nh itsi tlwew:w .cambridge.org/9780521073479 © CambridUgnei versPirteys1 s9 69 Thipsu blicaitsii oncn o pyrigShutb.j etcots tatutory exception andt ot hep rovisioofrn esl evcaonlt lecltiicveen saignrge ements, nor eproducotfia onnyp armta yt akpel acwei thotuhtew ritten permissoifoC na mbridUgnei versPirteys s. Firsptu blis1h9e6d 9 Thisd igitaplrliyn tveedr si2o0n0 8 A catalogue record for this publication is available from the British Library ISBN9 78-0-521-07h3a4r7d-b9a ck ISBN9 78-0-521-07p3a9p2e-r9b ack v CONTENTS Preface 1X List of Abbreviations x Table of Statutes xiv Table of Cases XVI THE DEVELOPMENT OF THE LAW OF CHARITY 1532-1700 1 Introduction: Charity Before the Reformation 3 II The Reformation and the Law of Charity 10 III The Statutes of Charitable Uses: 39 Elizabeth I c. 6 and 43 Elizabeth I c. 4 16 The common law background 16 The statutes of charitable uses 22 The jurisdiction of the commissioners 26 t The commission and the hearing 39 11 uz The powers of the commissioners and the Chancellor 47 iv The achievement of the commissioners 52 IV The Development of the Law of Charity 1545-1700: A Definition of Charity 57 The Development of the Law of Charity 1545-1700: v The Privileges of Charity 59 The perfection of imperfect instruments 60 i Defect of form 60 ii Incapacity at law 65 iii The limits of the Chancellor's indulgence 70 The application of charitable funds cy-pres 72 i Illegal charitable objects 76 ii Indefinite charitable objects 88 The application of surplus funds 91 vi CONTENTS Limitation 93 The Chancellor would hear charity suits even though the value of the property was under forty shillings 94 Suits to enforce legacies to charities were not re- mitted to the ecclesiastical courts 9 5 Priority over creditors of a bankrupt feoffee to charitable uses 95 The commissioners for charitable uses were allowed to decree land to a corporation in esse without danger of infringing the mortmain statutes 96 Marshalling of assets in favour of charity 96 The restriction of the defence of bona fide purchase 97 THE DEVELOPMENT OF THE LAW OF CHARITY 1700-1827 VI Introduction 105 VII The Mortmain Act, 1736 109 The background to the Act 109 The interpretation of the Act 1 1 3 VIII The Preamble to the Charitable Uses Act, 1601, and the Definition of Charity 120 IX The Influence of the Mortmain Act, 1736, on the Definition of Charity 128 x The Development of the Law of Charity 1700-1827: The Privileges of Charity 134 The perfection of imperfect instruments 135 The application of charitable funds cy-pres 1700- 1827 138 t Initial failure of a charitable object 140 ii The element of general charitable intention 144 The application of surplus funds 153 Marshalling of assets in favour of charity CONTENTS vii XI The Enforcement of Charitable Trusts 1700-1827 160 Appendixes A Bills and Answers in Chancery relating to Charities: 1350-1601 171 B Selected Transcriptions 202 C The Charitable Uses Act, 1597: 39 Elizabeth I c. 6 221 D The Charitable Uses Act, 1601: 43 Elizabeth I c. 4 224 E A Bibliographical note on the Cambridge MS. of Francis Moore's Reading on the Statute of Charitable Uses: 43 Elizabeth I c. 4 229 F Francis Moore's Notes and his Speech at the Beginninge 240 G A Case from Francis Moore's Reading 247 H Inquisitions before the Charity Commissioners: 1 597- 1787 251 I Decrees made by the Charity Commissioners: 1597- 1787 255 J The Mortmain Act, 1736: 9 George II c. 36 257 K The Poor Relation Cases 260 Index 263 ix PREFACE In this book I have attempted to trace the history of the law of charity from the fall of Sir Thomas More (1532) to the last year of Lord Eldon's Chancellorship (1827), by which time the outlines of the modern law have firmly emerged. Few areas of English law more vividly illustrate the influence of contemporary forces, and one of my primary objects has been to trace the impact of social, economic and religious pressures on the development of the sub­ stantive law, on such questions as the definition of charity and the scope of the privileges awarded by the Chancellor to the charitable gift. In transcribing the primary sources I have not sought to turn contemporary orthography into modern form, nor have I corrected, or burnished in translation, Francis Moore's often corrupt law French. Editorial alterations and emendations have been distin­ guished by square brackets; and abbreviations have generally been expanded. Over the years I have received a great deal of help from many friends. I would particularly like to thank Professors J. P. Dawson, S. E. Thorne and A. W. Scott of the Harvard Law School, and, in this Cambridge, Professor S. J. Bailey of St John's College and Mr D. E. C. Yale of Christ's College, all of whom allowed me to draw freely on their patience and scholarship. My greatest debt of gratitude is to my wife who has constantly assisted and encouraged me when assistance and encouragement have been most needed. Trinity College, Cambridge GARETH JONES 5 November I968 x LIST OF ABBREVIATIONS I. REFERENCES TO RECORDS IN THE PUBLIC RECORD OFFICE, LONDON Transcripts and translations of Crown copyright records in the following classes in the Public Record Office, London, appear by permission of the Controller of H.M. Stationery Office. C. I Early Chancery Proceedings: 1350-1558 C. 2/Eliz. & C. 3 Chancery Proceedings: 1558-1601 C. 4-C. IO Chancery Proceedings: 1600-1714 c. 205 Special Commissions in Chancery c. 33 Chancery Entry Books of Decrees and Orders S.P. Dom. Calendar of State Papers, Domestic E. 134 Exchequer Depositions E. 178 Exchequer Special Commissions E. 126 Exchequer Entry Books of Decrees and Orders c. 91 Proceedings of the Commissioners for Charitable Uses: depositions exceptions inquisitions and decrees. 2. REFERENCES TO RECORDS IN THE LIBRARY OF THE HONOURABLE ' SOCIETY OF LINCOLN S INN Hale MS. Manuscripts of Sir Mathew Hale (16ocr76), Chief Justice of the King's Bench. Hill MS. Manuscripts of George Hill (1716-1808), Sergeant- at-Law. Cases in the House of Lords: Arguments of cases before the House of Lords. 3. REFERENCE TO RECORDS IN THE CAMBRIDGE UNIVERSITY LIBRARY Moore Reading on the Statute of Charitable Uses (43 Eliz. I c. 4), MS. Hh. III 2(c). 4· REFERENCES TO PRINTED SECONDARY SOURCES Calder I. M. Calder, Activities of the Puritan Faction of the Church of England (London, 1957). Co. Inst. Sir Edward Coke, Institutes of the Laws of England, 4 parts (London, 1797).