« AnteriorContinuar »
individuals hold as their own, and that which they hold, in any shape whatsoever, as trustees for the public. That property which a man rightfully holds as his own, is to be maintained for him by all those securities which experience has proved that the good of society requires. But that property which a man receives in trust for the public, is the property, not of him, but of the public; and if he turns it in any degree from the public use, to his own, it is he that is the violator of the rights of property—not the man who endeavours to put an end to his usurpation, and to restore it to the public to whom it belongs. It is a strange doctrine, that the violation of a trust, which is one of the greatest of all wrongs, should be allowed to convert itself into one of the most sacred of all rights. Yet to what an extent is the operation of this fallacy frequently carried? If at any time the public has made any particular applieation of the public property, which has continued for a series of years, it is very often contended that the public is no longer justified in altering that application. Why? Because the security of property would by that means be shaken. If the public applies its own property to a good end, after having applied it to a frivolous or a bad one, and thereby lessens the gains of those who have profited by the abuse, this is very often arraigned as an invasion of the right of property, and a prejudice is raised against some of the most salutary operations of the State. It is obvious, on the other hand, that if it is the property of the public, the violation of property is committed by those who are instrumental in turning it from that application, be it what it may, in which it would conduce most effectually to the public good. Mr Brougham shows, that this is not merely a principle founded in reason, and the consideration of moral equity, but a principle distinctly recognised and sanctioned by the law of England.
That law regards the inheritance of the poor as matter of public, not of private jurisdiction, and deals with it as it does with the rights of the Crown and the Church. I am anxious to correct, once for all, the misrepresentation of which I now complain ; because it is artfully disseminated with a view to excite prejudices against the proposed measure, by appealing to the very just delicacy that prevails on every thing connected with private rights. I therefore again assert, that a more gross abuse of language never was committed by ignorant or by wilful perversion, than the statement that charitable funds are of a private nature. The Legislature has at all times treated them as public. The 43d of Elizabeth orders Commissions to be issued for examining all abuses of those funds, with powers not merely to inquire, but to reform, by making orders, judgments, and decrees. Who ever thought of a commission to investigate or control the management of private property ? When a private estate is dilapidated when land is let for an elusory rent-when the interests of the remainder-man are in any way sacrificed by the tenant for life—who ever dreamt of allowing any one not interested (except in the case of an infant) to apply for a judicial investigation of the injury? Yet, by the statute of Elizabeth, Commissioners may be sent into any county with powers to impannel a jury, and proceed judicially against all who mismanage or abuse funds destined to charitable uses, without any previous complaint at the instance of any party interested in the property. In like manner, Mr Gilbert's Act requires every per. son in whose hands any such funds are, whether arising from land or other sources, to return the nature and amount of the estates within three months, on pain of forfeiting one half of the property at the suit of a common informer. The two statutes passed in 1812, proceed upon the same view of the question. By one of them (52 Geo. III. e. 101) a registry of charitable donations is prescribed ; and the other (52 Geo. III. c. 102) gives a remedy for any abuse of them, by petition to a court of equity, which any two persons may present ; a proceeding which has, however, proved most inadequate to the correction of the mischief. Such is the light in which charitable funds have always been regarded by the Legislature, and so little have they ever been considered as private property! But I might appeal to the view which the Common Law takes of them, when it places them, as it were, under the joint protection of the Crown and the community, authorizing the Attorney General to file an information on the relation of any individual, who may state that a charity has been abused.' p. 33-35.
Another objection is, that a remedy for the abuse of charities already exists, namely, in the access which is afforded to the Court of Chancery, by the statute of charitable uses. To this objection, Mr Brougham makes a memorable reply; and draws a picture of this Court of Chancery, which though probably a little highly coloured is still not a little appalling. This picture, coming from so high an authority, both as a lawyer and a statesman, we hope, will make an impression; and lead to those ideas of reform which, in some bosoms, no accumulation of evil seems capable of exciting.
. It has been said, that the statute, of which I have just mentioned the notable origin, affords a sufficient remedy for the evil. The history of the proceedings under it, affords the best answer to this objection. During the first year after it passed, forty-five Commissions of Charitable Uses were issued. From that time to the year 1643, the returns are defective, the Docket Books in the Crown Office having been destroyed. From 1643 to the Restoration, there were two hundred and ninety-five Commissions. The troubled state of the country during the civil wars having probably occasioned great neglects and abuses of charities, a considerable increase took place in
the number of Commissions, and no less than three hundred and forty-four were issued, between 1660 and 1678. From that time to 1700, there were one hundred and ninety-seven : from 1700 to 1746, only one hundred and twenty-five: and from thence to the beginning of the present reign no more than three. So that the whole number from 1643 to 1760 was nine hundred and sixty-four. Since the latter period, and indeed for twenty years before, this remedy may be said to have fallen into disuse. There have been only three commissions this reign, and only six in the last 75 years, of which number only one has issued since 1787, when the Committee stated the urgent necessity of investigating charitable abuses. It is hardly needful to show the reasons, why the statutory remedy is inapplicable to the present times, and in itself cumbrous and inefficacious. Suffice it to observe, that it leads him who pursues it, sooner or later into the Court of Chancery; and in truth, as the law now stands, that well known Court is the only refuge of those who complain. See then the relief held out to us by those who oppose, or threaten to oppose this measure, and who bid us resort to the ancient laws of the land! It is admitted to be true, that glaring abuses everywhere prevail_true, that hardly a parish or a hamlet can be named where complaints are not heard-true, that the highest judicial authority proclaimed the extent of the grievance-true, that a Committee of the House of Commons, thirty years ago, vehemently urged you to afford redress. But your remedy is at hand, say the objectors—what reason have you to complain? Is not the Court of Chancery open? Come, all ye who labour under the burthen of fraud or oppression enter the eternal gates of the Court of Chancery! True you are the poor of the land—the grievance you complain of has robbed you of every thing : but, pennyless though you are, you are not remediless-you have only to file a bill in equity, and the matter will take its course! Why, if there were nothing in the reality, there is something in the name of the Court of Chancery that appals the imagination, and strikes terror into the unlearned mind. I recollect a saying of a very great man in the Court of King's Bench. The Judge having said of his client, “ Let him go into a Court of Equity,” Mr Erskine answered, in an artless tone of voice, which made Westminster Hall ring with laughter, “ Would your Lordship send a fellow-creature there?" There may be some exaggeration in the alarms created by the bare name of this Court; but, as long as it exists, a barrier is raised against suitors who only seek redress for the poor, though no bars of oak or of iron may shut them out. Yet that the prevailing panic has some little foundation, I will show you by a fact. I have mentioned that oply one Commission had issued since 1787, and I am now enabled to state the result of its execution. It was fully executed in 1803; aryl in 1804, a decree was made, and the Court was petitioned to confirm it. Exceptions were taken as usual. Muc! and solenn argument was held; and I will venture to say, from what I know of that Couri, iko VOL. XXX. No. 60.
case was most learnedly and plentifully debated. In 1808 the matter was deemed ripe for a decision, and since that time it has, to use the technical, but significant expression, stood over for judgment. For ten years it has awaited this final issue; and during the last four years it has stood at the head of the Lord Chancellor's Paper, first among the causes waiting for judgment. Now, in the language of the profession, “ this is my case. If any one tells me that the Statute of Charitable Uses affords a remedy, I answer, that the grossest abuses being everywhere notorious, the remedy has only thrice been resorted to for above half a century, and only once within the last thirty years; and I bid him look at the fate of that one attempt to obtain justice.' p. 39–43.
There are some minor objections to which Mr Brougham deems it requisite to make an anwer, through which, however, we do not think it necessary to follow him. It satisfies us to have shown, as we think we have done, that Mr Brougham has most completely established his case; first, in proving that the greatest abuses exist; and secondly, in proving that there is no existing remedy for them. The inference, to the minds of all those who have no wish that the abuses should remain, is irresistible,—that inquiry should take place, to lay a foundation for reform.
It is not our intention to enter now into the provisions of the bill which was introduced by Mr Brougham for establishing a board of inquiry, nor into the history of the curtailments which the powers required in it underwent before it was passed into a law. It is necessary, however, to state, that the commissioners who, it was originally proposed, should be chosen by Parliament, are now chosen by the Crown; and their powers of inquiry, instead of being extended to all charitable funds, are confined to those which are destined to the purposes of education. Nor is this limitation the whole; for the Two Universities, London, Westminster, Eton, Winchester, Charterhouse, Harrow and Rugby schools, and all charitable foundations which have special visitors, are exempted from the inquiry. Finally, the commissioners, even in the narrow circle to which their inquiry is confined, are furnished with no compulsory powers for the attainment of evidence. They are only to issue their precept to such persons as they wish to examine, or from whom they desire to be furnished with papers and records; but if any person chuses to disregard this precept, they have no means of enforcing obedience,--they have no penalty to apply,—and the end of their appointment is in that instance defeated. To how great an extent they will meet with these refusals, it is impossible to foresee. But it is abundantly plain, that they will be most likely to meet with them, in those cases in which there is the greatest need for disclosure,-those in which the abuses to be concealed are the most enormous. It is therefore plain, that this peculiar provision of the act is calculated solely for the protection of the greatest delinquents.
There is but one topic more on which we are anxious at this time to express our sentiments; but that is a point of cardinal importance,—we mean, the revival of the Committee by the New Parliament. The reasons which prompt to this measure are numerous and powerful; and such, we fervently hope, as even the great body of sinister interests arrayed against them, will not be able to overcome. If sufficient reason existed for the first formation of the Committee on Education,--and that it will not be very modest to deny, after all the compliments which have been paid to them by the leaders of all parties, on the importance of their labours, and after that importance has been so conspicuously manifested by their reports, and so fully recognised by the public-we may, without hesitation affirm, that still greater reason exists at present for the continuance of their labours. What they have already done, has chiefly served to show the magnitude and importance of what yet remains for them to do. As yet they have done nothing but inquire into the present state of education among the poor ; and even this preliminary operation is still but imperfectly performed. They have indeed discovered enough to make manifest to the world the deplorable state of England in that important respect; but it is rather a gross and general conception, than a minute acquaintance, that they have been able to acquire. For this degree of knowledge-for that sort of knowledge which is required to form the basis of a practical superstructure-much more inquiry must be made.
But even if this important portion of the business had been accomplished, and the labours of the Committee had lasted so long as to lay before us a complete delineation of our actual circumstances, this would have been but a part, and a small one, of the great business to be performed. The only rational end of ascertaining exactly the badness of any situation, is to ascertain the means of improvement. Assuredly, it is an important inquiry. After having proved, by examination, that there is a lamentable and disgraceful want of education in this conntry; that in a country where science and refinement have made so great a progress among one part of the people, there is another, and that the largest part, immersed in the most deplorable ignorance; it would be strange if we did not proceed to find out what are the best means of altering this deplorable state of circumstances, and of introducing among the people that know