31. It is remarkable that a short time previously the Court of King's Bench had expressed an opinion that the Court of Chancery had the jurisdiction which Lord Eldon denied. I refer to this, not as throwing any doubt on the legal soundness of Lord Eldon's decision, for he and not they knew the law of Chancery, but as showing the sense entertained by men accustomed to administer justice that to deal with corporate property for non-corporate purposes was a wrong, and required a remedy.

32. Indeed, nothing could show the shortcoming of the law in a more striking way than Lord Eldon's reference to the exploits of ecclesiastical corporations. At common law they could deal with their property as they pleased. They did please, or divers and sundry of them pleased, to deal with it so as to impoverish the Church and enrich their families. To stop this process restraining statutes were passed in the reign of Queen Elizabeth, whereby Bishops and other corporations were forbidden to grant any larger interests than leases for twenty-one years or three lives, on which "the old accustomed yearly rent" should be reserved. Under this law ecclesiastical dignitaries went on making leases of lands belonging to the Church to members of their families, reserving only the old rent which was paid in the time of Queen Elizabeth. Lord Eldon says he could find episcopal estates worth £1,000 or £2,000 a year, where the rent reserved to the See was only £50, and the difference went into the pocket of the lessee; viz., the Bishop's executor or some one whom he favoured. Such a system was downright robbery of the inheritance of the Church for the benefit of its present incumbent. But because the Bishop was not a "trustee," i.e., held not on any specific trust, but only for corporate purposes, courts of law had nothing to say to such doings. Such decisions as these only show the limited action of a court of law, and are of no avail in a forum which decides on wider grounds of justice and public policy. In fact they show that dealings with property may amount to actual plunder of a public institution, and yet be quite legal.

33. I will show presently how the Legislature dealt with Municipal Corporations in the year 1855. Up to that time "the corporate property was not subject to any trust. The corporation might do with it whatever they chose; and, generally speaking, no relief could be obtained either at law or in equity for any misapplication of that property."

34. In the year 1878 it was held that an incorporated guild at Newcastle, consisting of seven members, could legally divide among them the sum of £1,750 belonging to the corporation. But there was no evidence of the contents of their charter, or of the objects of the society. There were no rules, and the custom had been to * Parr v. Att.-Gen., 8 Clark and Finnelly, 431, per Lord Campbell.

deal freely with their property.* This is, so far as I know, the only legal decision on the question whether the members of an incorporated guild may lawfully without a dissolution of the society divide its assets among themselves. Such a division was made on the occasion of the dissolution of Doctors' Commons and of Serjeants' Inn; in the former case I think by Act of Parliament, but I do not know the circumstances of either case.

35. There have been many cases in which the question has been raised between the Companies and the Attorney-General, suing on behalf of the State, whether land given to a Company has actually been affected with a trust for specific charitable objects. I will illustrate the nature of these questions by Laxton's case.t In the year 1556 Laxton, being minded to erect a school at Oundle and also an almshouse, devised land to the Grocers' Company. In his will he stated that he had agreed with the Company and had set out to them certain lands for the payment of the stipends of the schoolmaster usher and poor men, and for repairs of the house. His directions to the Company were, that they should obtain an old guildhouse at Oundle, and employ it as a school and almshouse; that they should provide a schoolmaster and an usher; that they should pay the schoolmaster yearly £18 and the usher £6 13s. 4d.; that they should pay to seven almsmen eightpence weekly apiece; and that they should pay £1 4s. yearly for the maintenance of the house. At Laxton's death the rental of his lands was £50 a year: the payments which he specified amounted to £38 a year; there was therefore a surplus of £12, as to which the testator said nothing. question raised in the year 1843 was whether, when the property had enormously increased in value, the Company were bound to apply the increase or a proportion of it to the charitable uses. It was held that they took the surplus as their corporate property, and were not bound to make more than the specified payments in support of the school and almshouse.

The

36. I have not before me the amount of income of this property in the year 1843. From the returns made to the Commission I gather that in 1881 the gross rental amounted to about £4,860, with prospect of increase when leases fall in. The Company states the net rental at about £4,000. But the Company are still only bound by law to make the specified payments of £38 a year. In point of fact they have taken a much more conscientious view of their position than the law has forced upon them. As the property increased in value they gave larger amounts to the almspeople and to education; and they show that their present annual outlay on these objects is about £3,250.

*Brown v. Dale, L. R. 9 Chan. Div. p. 78.

+ Att. Gen. v. Grocers' Company, 6 Beavan, 526.

37. To show on how narrow a distinction the decision in this case turned, if the testator had added that after the specified payments the residue of the income would be £12, and had given that to the Company, the objects would have all shared equally in the property. I suppose there are few people who have studied this class of cases without feeling dissatisfied with the canons of construction applied to them, which were laid down in early times, and followed the rules applicable to gifts of private estates. Gifts in perpetuity raise different considerations. It is absurd to suppose that a man, whose main intention is to found a school enduring for ever or for centuries, can intend that when the value of everything has undergone a vast change, his object shall be starved. The reasonable rule would have been one which provided either for proportionate sharing in good fortune and in bad, or for an adequate maintenance of the main object. But whenever such a rule could not be spelt out of the instrument of foundation, often a very informal affair, the legal donees, unless constituted bare trustees as to the whole, have been held entitled to the whole increase. And such has been the result in the great majority of instances.

38. In deciding Laxton's case, Lord Langdale used expressions on which the Companies place some reliance. He said that, on the construction which in his opinion the will ought to receive, the income "belongs as private property to the Company." It is obvious, however, that this expression only means that it was property not affected by the charitable trusts in question, or, in other words, was part of the general corporate property. As between corporate property and private property in the sense in which an individual holds private property, there was no controversy before the Court.

39. How careful Lord Langdale was to confine himself to the exact claim made in such cases appears from his judgment in Kneseworth's case.* Kneseworth had devised lands to the Fishmongers' Company in the year 1513, for the purpose of obits anniversaries, masses, beadsmen, and aid to prisoners. In the year 1550 the City Companies purchased from the Crown all the property which in their hands was affected with superstitious uses, and was therefore forfeited to the Crown. The Attorney-General claimed Kneseworth's lands for the charitable uses of his will; but Lord Langdale held that, with the exception of a trifling rent-charge for aiding prisoners which had always been paid, the whole property was given to superstitious uses, and had passed to the Crown, and so back to the Company, free of those uses. Therefore the provisions of Kneseworth's will were, with the aforesaid exception, at an end, and the claim of the AttorneyGeneral had nothing to rest on. As regards any other claim which might be made against the Company on more general grounds, Lord * Att.-Gen. v. Fishmongers' Company, 2 Beavan, 151.

Langdale does not commit himself: "having regard to the nature of the present suit, which seeks to establish the trusts of Knese worth's will, and to carry them, and not any other trust created in any other manner, into execution," he goes on to determine whether any existing trusts of that will are being violated.

40. The broad result of the decisions to which I have referred is this that, apart from statutes, both civil and ecclesiastical corporations were free to deal with their property uncontrolled by law; that in one case the members of a guild with no public objects, and no objects defined by charter or rule, were held entitled to take the money of the guild; that in many cases it has been decided that particular lands given to City Companies are part of their general corporate estate, and not charged with the specific charitable trusts. mentioned in the instruments of gift: but whether by the very nature of their constitution, or by the character in which their property was acquired, some trust for charitable purposes fastens upon their property, is a question which has not been discussed.

41. Such a question suggests itself when it is seen in how many charters charitable objects are referred to. I subjoin some speci

mens:

The Mercers' charter states that many men of the mystery did frequently "fall into so great poverty and want as to have little or nothing whatever to support themselves, unless through the bounty of others faithful in Christ pitying and assisting them from a motive of charity; and that on that account the men of the mystery had a wish and intention of contributing some certain provision for such poor, and for a chaplain." Then follows the act of incorporation and a licence to hold lands of the value of £20 per annum in aid of the support as well of the poor men of the said mystery as of one chaplain, &c. (Mercers' Return, p. 3.)

The Goldsmiths' charter is founded on a recital that many persons of that trade had lost their sight, or become so crazed and infirm that they were disabled to subsist but of relief from others and that divers of the said City, compassionating the condition of such, were disposed to give and grant divers tenements and rents in the said City to the value of £20 per annum to the Company towards the maintenance of the said blind, weak, and infirm. I quote this from the Report (p. 12), not finding a copy of the charter among the published returns.

42. There is similar evidence as to several other Companies that one of their original objects was the support of the poor: I may mention the Merchant Taylors, the Fishmongers, the Vintners, the Tallow Chandlers, and the Grocers; each Company taking the poor of its own body or its own craft as objects of compassion.

43. I am not suggesting that suits should be instituted to try

such questions. They would meet with great legal difficulties on a variety of grounds, and even if successful would produce a very unsatisfactory result. In fact, the limitations under which a Court of Law works, and must work, makes it a bad tribunal when it is called upon to readjust the application of property settled under circumstances which have undergone a complete change. It appears to me that all the broad considerations in this case point to the interference of the Legislature as the right thing. There are some differences in the Companies which would be brought out by such an enquiry as the Report recommends. To the bulk of them the following considerations apply.

44. They are totally different bodies to what they were formerly. The bulk of their property was acquired in their old character. They were important portions of the Municipal Government. They now play only a small part in it. Their principal functions were superintendence and regulation of trade and of craftsmen. With some few exceptions, those have passed away. The charters show that religious services were one object of their endowments. Those ceased at the Reformation. The charters also show that aid to the poor, the very poor who could find no subsistence, was another object of their endowments. That remains, but the poor of the craft who are now helped are, at least to some extent, not the very poor, nor can this class of objects absorb so much of the endowments, but that a large surplus must remain. Ought it not to be taken, in the absence of evidence to the contrary, that the Companies acquired property in that character, and for those purposes in which and for which they were incorporated, and so enabled to acquire and preserve it? And if that character has passed away, and those purposes have failed, which is the most just and decent thing: that the property should be taken by the miscellaneous groups who by descent, purchase, or otherwise have come into the place of these trade societies, or that the State should step in to readjust it?

45. Add the further fact that this broad question cannot be tried by any ordinary legal tribunal, because the Courts have decided that to hold property for corporate purposes does not create a trust of which they can take cognizance. It may here be useful to recollect that the Municipal Corporations were, speaking generally, beyond the control of the law in their dealings with corporate property. Therefore the State intervened by restraining alienation, and by directing that the property should be applied in the payment of various expenses, such as those of gaols, police, officers' salaries, &c.; and, if more than sufficient for these purposes, for the public benefit of the inhabitants and improvement of the borough.* This created trusts for public objects, which are, in the legal sense, charitable trusts. * Municipal Corporation Act of 1835, sec. 92, 94.