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The Rambler,

A CATHOLIC JOURNAL AND REVIEW.

VOL. XI.

APRIL 1853.

PART LXIV.

CHARITABLE TRUSTS, ANCIENT AND MODERN.

Most of our readers are, of course, aware that almost all the property applied to the purposes of the Catholic religion in this country is held by persons in trust for such purposes; and these trusts are in general terms called Charitable Trusts. Consequently no subject could be more important to the Catholic Church in England than the administration of these trusts; and for years past-in fact, ever since they became legal in their character-the subject has been one of anxious consideration to the bishops, and has given rise to many painful disputes. There have been repeated efforts to obtain legislation on the question; some on the part of the friends, and some by the enemies of the Church. Last session an attempt of the latter character was made in the bill brought in by Sir F. Thesiger, the attorney-general of Lord Derby's government and the counsel for Dr. Achilli. This measure was neither more nor less than one of wholesale confiscation for Catholic religious trusts, by casting them into Chancery. Happily, although it was supported by Mr. Chisholm Anstey, it was so well opposed by Mr. Monsell, Mr. Moore, and other zealous Catholics in and out of parliament, especially by one who is now, we rejoice to say, in parliament (we mean Dr. Bowyer), that it was defeated. Already, however, notice of a question has been given on the part of Mr. Anstey's colleague and coadjutor in many pious anti-Catholic labours, as to whether the present government intend to bring in some measure on this subject; and whatever may be the answer, it is pretty plain that ultimately the question must come before parliament. It is of the utmost importance, therefore, that it should be well understood; and we are persuaded that it is not well understood, nor indeed understood at all, by a large class of Catholics. For this reason we propose to attempt its

elucidation in a plain historical way, tracing from the earliest periods the history of Catholic religious trusts, and shewing how they were administered, and under what authority, and how far they have ever been deemed not of legal but of spiritual cognisance; our special object being to negative the claim set up by the secular courts to have cognisance of them, and to shew that never in this country, down to the present period, have they been under exclusively temporal administration, and that until the Reformation they were under an exclusively spiritual administration.

We shall first, in the present article, trace the history of religious trusts down to the era of the Revolution, when Catholics were precluded from holding lands at all; and afterwards consider the history of the law as to Protestant trusts since the same era.

In the primitive times the bishop was the sole dispenser of the goods of the Church, by the hands of the deacons. In the Apostolical Constitutions it is said, "It is for you, O laymen, to contribute liberally; it is for the bishop, as the steward and administrator of ecclesiastical matters, to dispense. Beware lest you wish to call the bishop to account; and do not watch his dispensation, in what manner he expends it, or when, or to whom, or whether well or otherwise; for he has God to call him to account, who hath delivered this procuratorial office into his hands, and deigned to commit to him this great sacerdotal dignity." And in strict conformity with the spirit of this language, we find St. Cyril of Alexandria protesting against an attempt to call bishops to account. But, as Thomassinus truly states, while the bishop had the sole dispensing power, he was bound to follow the canonical law of dispensation, or he might be summoned to answer before the metropolitan; and he again was, of course, subject to the Holy See. It is easy to shew that similar principles were enforced at the foundation of the Catholic Church in this country. Thus we read in Bede, that Pope Gregory wrote to St. Augustine, "Bishop of the Church of Canterbury," in the sixth century: "It is the custom of the Apostolic See to prescribe rules to bishops newly ordained, that all emoluments which accrue are to be divided into four portions; one for the bishop and his household, because of hospitality and entertainment; another for the clergy; a third for the poor; and the fourth for the repair of churches. As for those who live in community, why need we say any thing of hospitality and mercy, as all that can be spared is to be spent in pious and religious works?" The same principles can be traced throughout

the Anglo-Saxon laws. It was among the ecclesiastical canons, enacted under Edgar and Edmund, that "the priests so distribute the people's alms as that they do both give pleasure to God and accustom the people to alms; and that no dispute between priests be referred to the adjustment of secular men, but let them adjust it among their own companions, or refer to the bishop, if that be needful." In the tenth century Edgar made an appeal to the bishops and abbots to repress abuses which prevailed; stating, that he bore the sword of Constantine, they that of St. Peter; that his care was to provide for their due support and subsistence, theirs to enforce good discipline. "It is for you to see that they are careful in the performance of their rule."*

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Nothing is more clear than that originally, according to the law and constitution of this country, the secular courts had no cognisance of what was spiritual; and "uses," in their own nature, being the possession of property in trust and confidence, were matters merely of conscience, and so spiritual. Hence in the most ancient law-book in our language, the Mirror of Justice, originally written in the time of Alfred, and edited in the reign of Edward I., it is declared at the outset, that "the law was divided into canon law, which consisteth in the amendment of spiritual offences by admonition, prayers, reproofs, and excommunication; and the written law, which consisteth in the punishing of temporal offences;"† and it is added, "of the spiritual law the prelates judged, and lay princes of the other law." And among the instances afterwards given of obligations of which the temporal law took no cognisance, is this case: If I devise in my will that you shall sell some of my tenements to pay my debts, or to do other things with the money, and you keep the money to your own use;"+ language which, of course, equally includes uses spiritual or secular; and in both cases it is recognised as the law of England, that the temporal courts could not enforce. The reason given, though not clearly expressed, is perfectly intelligible; it was this, that it was a question mainly of bad faith (in the old French, "entremellure de male foy"), i. e. the parties had not contemplated responsibility to the secular courts; the receiver had only contracted morally, not legally, but so as to bind his conscience. This distinction is drawn in all our ancient laws, and recognised by the commentators upon them. Thus Bracton, writing in the reign of Henry III., lays it down, that to the spiritual courts pertain matters spi* Maccabe's Catholic History, vol. ii. p. 561. +Mirror of Justice, ch. i. sec. 1.

Ibid. ch. ii. sec. 27.

ritual or annexed to spiritualities;* and by his definition of a trust distinguishes it from a condition or a contract, and excludes it from the cognisance of the secular courts. As an illustration of this distinction between conditions and trusts, we may mention that, in the reign of Edward I., a celebrated statute passed to reaffirm the principle declared in the laws of Alfred and Henry I., as to what in modern language is called entailed estates, and reciting in very remarkable words, that it "seemeth very hard to the givers and their heirs that their will, being expressed in the gift, was not nor is observed;" and then enacting, " that the will of the giver, according to the form in the deed of gift expressed, shall be from henceforth observed." And as the donor clearly intended that if the object of his gift failed, the land should revert to him or his heirs, the secular courts took cognisance of and enforced this purely temporal right.

Of course, it was very different in the case of property conveyed to pious uses, where, however express the trust, the object was purely spiritual; and so the execution of it was considered exclusively of ecclesiastical cognisance. We cannot collect any cases of this character from the early laws or records of the country, but may infer from the passage already cited out of the Mirror that they existed, and that parties did sometimes leave or give lands, or money, expressly for the purpose of particular religious uses, as saying masses, giving alms, and so forth. Indeed Glanville, in the reign of Henry III., alludes to persons "leaving land to any one in remuneration of his services" (which might of course be services spiritual, as singing requiem for the repose of his soul); but he adds, "c or to a religious house, as free alms ;" and Bracton explains this as a technical legal phrase, denoting that land so given "to churches, cathedrals, conventual or parochial, or to religious houses," was held by them perpetually for purely spiritual services. And in the reign of Edward I. an act of parliament recited "that religious houses were founded that alms and other charitable deeds might be done, and prayers offered for the souls of the founders and their heirs;"‡ and again, in the reign of Henry V., an act recited that they were founded "by lords and ladies," "to the honour of God and His glorious Mother, in aid, and to the merit, of the souls of the said founders."§ So that the object of these donations was purely spiritual, and the performance of the services of