Subject of part.

The Toleration Acts have taken away the penalties which might at one time have been inflicted on teachers who did not profess obedience to the church. The canons that require licence from the ordinary for every teacher were not binding on the laity, and have become almost obsolete as to the clergy. Finally, in regard to the four great classes of teaching institutions, namely, the universities, the public schools, the middle class schools, and the primary schools, the University Commission Acts, and the University Tests Act, 1871; the Public Schools Act, 1868; the Endowed Schools Act, 1869, and the Welsh Intermediate Education Act, 1889, and the Elementary Education Act, 1870 (c), respectively, have either caused or recognized with a legislative sanction an increased separation between the church and education in this country.

Such instances of ecclesiastical influence as still remain, which show themselves not in the mode of teaching so much as in the nature and government of the teaching institutions, will be treated of in the following pages.

(c) 34 & 35 Vict. c. 26; 31 & 32 Vict. c. 118; 32 & 33 Vict. c. 56;

52 & 53 Vict. c. 40; 33 & 34 Vict. c. 75.

CHAPTER II.

CHARITABLE TRUSTS.

SECT. 1.-Generally.

2.-Law of Mortmain.

SECT. 1.-Generally.

between

THE Connection of the church with charities, which was at one Instances of time productive of most important results in the application of connection general principles to both, still remains and operates in some church and material circumstances. These may thus be classified :(A.) The established church itself is a charity, and all religious uses are charitable ones, and as such are subject to the general law of charities.

(B.) The authorities of the church have certain jurisdiction over charities.

(C.) The church has, in some cases, recognized the status conferred on its members by their position in a charitable corporation.

(D.) Questions relating to charities have frequently been decided according to the principles of civil or ecclesiastical law. (E.) By the law of the land the church has certain peculiar privileges in relation to charities.

charities.

(A.) The scope and meaning of the word "charity" as a What are legal term has been clearly laid down by judicial authority.

Charity may, "in its wildest sense, denote all the good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor." But in neither of these senses is it employed in a court of equity. There "its signification is derived chiefly from the Statute of Elizabeth. Those purposes are considered charitable, which that statute enumerates, or which by analogies are deemed within its spirit and intendment; . . . .” (a).

charities.

This statute of Elizabeth (43 Eliz. c. 4) provided for the 43 Eliz. c. 4. issuing of certain commissions to inquire into and reform abuses

and neglects of charities. Its active portion was long obsolete;

(a) Sir William Grant in Morice v. Bp. of Durham, 9 Ves. p. 405 (A.D. 1804).

but the preamble was constantly referred to as a declaration of the legal sense of the word "charity," and has been since re51 & 52 Vict. enacted by 51 & 52 Vict. c. 42, s. 13, sub-s. 2, in the following words:

c. 42.

Preamble of 43 Eliz. C. 4, recited.

charities.

"Whereas by the preamble to the Act of the forty-third year of Elizabeth, chapter four (being one of the enactments hereby repealed), it is recited as follows:

"Whereas landes tenemente rentes annuities pfittes hereditamentes, goodes chattels money and stockes of money, have bene heretofore given limitted appointed and assigned, as well by the Queenes moste excellent Majestie and her moste noble progenitors, as by sondrie other well disposed psons, some for releife of aged impotent and poore people, some for maintenance of sicke and maymed souldiers and marriners, schooles of learninge, free schooles and schollers in univsities, some for repaire of bridges portes havens causwaies churches seabankes and highewaies, some for educacon and pfermente of orphans, some for or towardes reliefe stocke or maintenance for howses of correccon, some for mariages of poore maides, some for supportacon ayde and helpe of younge tradesmen, handiecraftesmen and psons decayed, and others for releife or redemption of prisoners or captives, and for aide or ease of any poore inhabitante concninge paymente of fifteenes, settinge out of souldiers and other taxes; whiche landes tenements rents annuities pfitts hereditaments goodes chattells money and stockes of money nevtheles have not byn imployed accordinge to the charitable intente of the givers and founders thereof, by reason of fraudes breaches of truste and negligence in those that shoulde pay delyver and imploy the same:' and whereas in divers enactments and documents reference is made to charities within the meaning, purview, and interpretation of the said Act:

"Be it therefore enacted that reference to such charities shall be construed as references to charities within the meaning, purview, and interpretation of the said preamble."

Gifts in favour The term charity, as construed by the statute of Elizabeth, of church or has, it has been said, been always holden to extend to the religious purposes, how far church and to religious purposes. Specifically, bequests for the use or ornament of a parish church, for stipends to curates, singers and organists in churches, to societies for the spread and advancement of religion, either in England or abroad (b), have all been holden to be charitable legacies (c).

It should be noticed that while gifts for the repair of the church or ornaments in it are charitable, a gift for the repair

(b) The Society for the Propagation of the Gospel is within the law as to charities: Chester v. Chester, L. R. 12 Eq. p. 444.

(c) See cases cited in Tudor's Law of Charitable Trusts, ed. 3, Part I., c. 1, pp. 6-11; Tyssen, Law

of Charitable Bequests, Chap. X.; and A.-G. v. Bp. of Chester, 1 Bro. C. C. p. 444; Hoare v. Osborne, L. R., 1 Eq. p. 585; Fisk v. A.-G., L. R., 4 Eq. p. 521; In re Maguire, L. R., 9 Eq. p. 632.

of a grave in the churchyard and not in the church, is not charitable (d).

The peculiar principles of law which govern charities may be classified as follows:

charities.

(1.) Gifts to charities are especially favoured by the law, and Privileges of every attempt is made to effectuate the charitable intention of the donor (e).

This takes place in several ways:

The courts supply any formal defects in the gift or assurance, or in the trustees who are to be the channels of the gift (ƒ).

The courts seize on any intention of a charitable gift, however vague and uncertain the gift may be, and appropriate it to charitable purposes of some kind or other-those charitable purposes to be afterwards worked out by the court or the trustees (g).

Charities are exempted from the general rules of the law against perpetuities; and, where it is for the benefit of the charity, it will rather be construed as perpetual than otherwise (h).

One who has endowed a charity with lands is not allowed to defeat his gift by an attempted sale to a purchaser for value under 27 Eliz. c. 4 (i).

Chancery.

(2.) Charities are under the especial control of the High Court Control of of Justice, which frames schemes for their administration, directs charities by the funds, where the object of the founder has failed, to be Court of bestowed on the nearest resembling charity on what is called the "cy-près " principle, has peculiar modes of procedure open to charities, as by information, by petition under Sir S. Romilly's Act (52 Geo. 3, c. 101), or by summary proceedings in chambers under the Charitable Trusts Act, 1853 (16 & 17 Vict. c. 137, ss. 28-31).

(3.) Charities are under the especial control of visitors or In other ways. governors, of commissions formerly issued under the statute of Elizabeth, and, by a series of acts from 1853 onwards, of a permanent charity commission, with large administrative and judicial powers.

(4.) Charities are subject to the doctrines of mortmain, all Mortmain. charities being subject to 9 Geo. 2, c. 36, while it was in force,

and charitable corporations to the Statutes of Mortmain.

This subject will be further dealt with at greater length (k).

(B.) The authorities of the church have certain jurisdiction Jurisdiction over charities.

(d) Hoare v. Osborne, L. R., 1 Eq. p. 585; Re Rigley's Trusts, 36 L. J., Ch. p. 147.

(e) Moggridge v. Thackwell, 7 Ves. p. 36.

(f) Duke, Charitable Uses, pp. 370, 371, 382, 385, 400, 503; Tudor, Law of Charitable Trusts, ed. 3, Part I., c. 3, p. 58, and cases there cited; Sayer v. Sayer, 7 Hare,

of church over.

Cases on

By the 43 Eliz. c. 4, already cited, the commissions issued 43 Eliz. c. 4. under that act were to be awarded to the Bishop of the diocese and his chancellor. On these words it was resolved in 44 Eliz. by Egerton Popham and Anderson, and Coke, attorney-general, that the see being full at the time of sealing the commission, if the Bishop is not named commissioner, the commission is void; but if he be named, it is not requisite that he be present at the execution, for that none is of the quorum; but any four or more may execute the same without the presence of the Bishop or his chancellor (1).

21 & 22 Vict. c. 71.

Bishops as trustees.

Recognition by church of

status in charitable corporation.

It was also resolved in the last-mentioned case, that if the see of the Bishop be void at the sealing of the commission, then the bishop need not to be named a commissioner, neither his chancellor. Or if the Bishop be named a commissioner, and die before the certificate returned, this does not avoid the commission, but the other commissioners may proceed (m).

By 21 & 22 Vict. c. 71, where the boundaries of dioceses are altered, provision is made for making the bishop within whose diocese any place is brought trustee of any local trusts in lieu of the former bishop (n).

The ecclesiastical authorities have also jurisdiction over spiritual hospitals (o), and had for a long time jurisdiction over grammar schools (p). The power of the Archbishop of Canterbury to visit the universities of Oxford and Cambridge is mentioned in the Chapter on Colleges (9).

(C.) The church has in some cases recognised the status conferred on its members by their position in a charitable corporation.

Thus, a fellowship in a college has always been considered as conferring a title to receive holy orders (r). The headship of any college or hall in either of the universities or of certain other charitable foundations is treated as a benefice for certain purposes in the statutes against pluralities (s).

The chapels of the colleges at Oxford and Cambridge, and probably of some other colleges and some hospitals, are considered as chapels dedicated and allowed by the ecclesiastical laws of this realm within the meaning of Canon 71 of 1603 (f). They are exempt from the ordinary parochial jurisdiction, and in some cases even from the ordinary episcopal jurisdiction.

By recent statutes the same has been declared to be the law concerning the chapels of public schools, endowed schools, and many other charitable foundations (u).