'^sP-' 
 
 
 i*.c
 
 L I B RARY 
 
 OF THE 
 
 U N IVER5ITY 
 
 or ILLI NOIS
 
 DISPOSITION or PROPERTY 
 
 c^^- 
 
 TO 
 
 PUBLIC USES. 
 
 BY 
 
 ARTHUR HOBHOUSE, Q.C., 
 
 {A:)i Address delivered at a Joint Meeting of tJie Social Science Association 
 and of the Society of Arts, Monday, July 5th, 1869.) 
 
 LONDON. 
 
 1869.
 
 LONDON ; 
 
 PRfXTEP BY W. WILFRED HEAD, VICTORIA PRESS. 11, 12, & 13, HARP ALLEY, 
 
 FARRINGDON STREET, E.C.
 
 ON THE LIMITATIONS WHICH SHOULD BE PLACED ON 
 DISPOSITIONS OF PROPERTY TO PUBLIC USES. 
 
 It has occurred to me to speak twice in public on this dry- 
 subject, and I shall make no apology for briefly recapitulating 
 what has been said before, because it forms a necessary intro- 
 duction to that which I have now to say. 
 
 The first address * dealt principally with the Past, and was 
 mainly an historical answer to the question, — " How did we 
 arrive at our present standpoint ? " The second f dealt prin- 
 cipally with the Present, and aimed at answering the question, 
 — " AYhat is our present standpoint ? " Before I sit down 
 to-day, I shall attempt an answer to the much more difficult 
 and conjectural question, — '' At what ought we to aim for the 
 Future ? " 
 
 Indeed, each of these questions is inseparably bound up with 
 the other two ; nor have I done so idle a thing as to attempt 
 the treatment of one without trenching on the others. The 
 bearing of the Past cannot be traced without an exhibition of 
 the Present and some forecast of the Future. The position of 
 the Present cannot be explained without examining its two 
 out-looks — the retrospect and the prospect. And to make 
 plans for the Future without an accurate analysis of that which 
 is, and at least some study of that which has been, is a rash 
 proceeding likely to result in failure. 
 
 The first thing I endeavoured to show was, that whereas the 
 English nation has been keenly alive to the mischiefs of per- 
 petual settlements in other cases, and has, in ways more or 
 less orderly, defeated them, it has, from a variety of causes, 
 allowed to Founders of wh;it are called Charities, in other words, 
 to settlors of property to public uses, a power of posthumous 
 disposition, unlimited in point of time, and almost unlimited in 
 range of object. This power has, like other arbitrary and 
 excessive powers, been used with little self-denial, little public 
 
 * " Lecture on Charitable Foundations, delivered at Sion College, 
 12tli March, 1868." Booth, 307, Regent Street. 
 
 t " On the Authority accorded to Founders of Endowments." Read 
 at a Meeting of the Association, on the 10th of May last.
 
 spirit, and more especially with little wisdom. It has been 
 used selfishly and blindly, according to the ordinary passions 
 and capacities of ordinary men. Yet we have chosen to remain 
 in bondage to the fetters which men no wiser nor better than 
 ourselves, and long since dead, have forged for us. I have 
 endeavoured to trace out the causes of this singular phjeno- 
 menon ; have combated what I think the unreasonable and 
 superstitious regard for the commands of persons who have 
 shown no claim to be regarded beyond their fellows ; have 
 denied the right (apart from positive law) of any human being 
 whatever so to enforce his will on posterity ; have contended 
 that the positive law which does in this country allow such 
 extravagant power should be altered, and that the manage- 
 ment of property should be resumed by those who alone can 
 either manage or enjoy it, viz., the existing generation of men ; 
 endeavouring to express my doctrines in this simple formula 
 — that Property is not the Property of the Dead but of the 
 Living. 
 
 My next proposition was, that we are making no substantial 
 progress towards sounder views ; and for the proof of this I 
 relied principally on the evidence afforded by the various 
 essays at legislation on this subject for some years past. One 
 object in doing so was to controvert an opposite opinion ex- 
 pressed by Mr. Mill — an opinion which was calculated to stop 
 all exertions in the direction of progress, and indeed to turn 
 them backwards, as it appears to have done in his own case. 
 Mr. Mill thinks that people at large are sufficiently convinced 
 of the impolicy of perpetual settlements to public uses, and 
 that now there is danger of their not allowing enough of 
 posthumous power to rich people. I think that there is not 
 the smallest symptom of any such danger, if danger it is to be 
 called, and fear that we have made no appreciable advance 
 towards shaking the absolute dominion of Founders. 
 
 Notwithstanding this, I have been urged to examine, and I 
 now propose to examine, how far the existing powers of Foun- 
 ders ought to be curtailed. And in so doing, I will again deal 
 with the doctrines advanced by Mr. Mill, in the paper to which 
 I have already referred. I do so for two reasons. First, 
 because those doctrines seem to me to contain much error; 
 and error from a man of such mark, and on a subject too 
 which hardly anybody has taken the pains to study, produces 
 disastrous effects. I have already come across cases in which 
 people who really shrink from and wish to suppress the whole 
 discussion, are delighted to quote so great an authority in
 
 favour of quiescence. Secondly, because arguments (I am 
 not speaking of assertions) in favour of the authority of Foun- 
 ders are so scarce that it is refreshing to find one of substance 
 enough to grapple with, and useful to know whither to direct 
 one's force. First, I will perform the more pleasant task of 
 noting the points of agreement. Mr. Mill allows that gifts to 
 public uses which work a clear and positive public mischief 
 ought at once to be interfered with, and he instances doles or 
 distributions of direct alms. Again, he thinks that in all 
 rases there ought to be some limit of tiuie beyond which the 
 Founder's intention should be wholly disregarded, or, in other 
 words, when his ownership over the property should cease. 
 In both these propositions, as far as they go, I heartily agree : 
 merely observing that they have not yet found acceptance ; 
 that the evils arising from their non-recognition are very 
 serious, the powers engaged in opposition to them very great, 
 and that there is no chance of these or any other useful reforms 
 being made acceptable to the nation at large, until they have 
 learned to estimate the right of posthumous disposition more 
 nearly at its true value. 
 
 But when we come to consider at what point of time the 
 Founder's ownership shall cease, Mr. Mill propounds schemes 
 \vhich seem to me objectionable, and founds them on reasoning 
 which is absolutely fatal to all effective reform on such a 
 subject. 
 
 His first and most characteristic argument is, that variety, 
 and not uniformity, is the thing most essential to human pro- 
 gress. Minorities, he says, ought to be protected. The 
 experiments of individuals to promote the public good ought 
 to be allowed ; and to disallow them in the supposed interest 
 of the public, is an offence against human liberty. And he 
 inveighs against the intolerance of the majority respecting 
 other people's disposal of " their property," of " money of their 
 own," of '* what is lawfully their own," after their deaths. 
 Now, that the thoughts and speculations of adult reasonable 
 beings should be left to play freely and without restraint, I 
 agree. Their actions should be as free as is consistent with the 
 avoidance of injury to their neighbours. To justify restraint 
 of individual action on the ground of detriment to others, the 
 detriment should be clear and indubitable ; or, in legal lan- 
 guage, the benefit of the doubt should always be given in 
 favour of individual freedom. So much the perfect law of 
 liberty requires, and so much is essential for the due progress 
 of mankind. These principles demand that, in the expenditure
 
 of money as in other things, adult reasonable beings should be 
 left to act nearly as they please. While a man is alive, you 
 have a tolerably sure guarantee that he will not, for any public 
 object, expose himself to privations, to blame, to ridicule, to 
 the chances of failure, or even undergo the exertions which 
 any original or eccentric course of action involves, unless he 
 has some strong enthusiasm or conviction that he is right. 
 This guarantee might not work in all cases, but it would in so 
 many that the others may be safely disregarded. 
 
 But when a man's deeds are to have no operation till he is 
 dead, what security have we that he will be guided by any 
 considerations of public spirit or benevolence ; that he will 
 feel the weight of responsibility ; that his passions will be 
 chastened by conscience, or his fancies corrected by sober rea- 
 son and reflection ? 
 
 I have intimated on previous occasions my deep distrust of 
 a jon'orz reasoning on practical subjects. Speculation and con- 
 jecture are doubtless essential to all discovery, but they should 
 be carefully collated with facts, and if unverified are worth 
 very little. To my mind the conjectural reasoning is against 
 Mr. Mill's view. But I willingly turn from it to the teaching 
 of experience. And it seems to me that if there were any 
 truth in the notion that, in order to have useful experiments 
 properly tried in matters of public interest, we ought to put it 
 in the power of men to make posthumous dispositions for this 
 purpose, our history, and especially our history of the last 
 250 years, would abound with instances of valuable discoveries 
 being made by means of such dispositions. We should be able 
 to point to institutions and arrangements of great and acknow- 
 ledged value taking their origin in some bequest, and which, 
 but for that bequest, could never have flourished. Where are 
 they ? I ask Mr. Mill and those who agree with him to point 
 out one, and when I am told of it, I promise to examine it. 
 
 At present, though our law has favoured gifts to public uses 
 beyond that of any other country, though the wealth of our 
 testators has exceeded that of any other country, I have never 
 come across a single case to support Mr. Mill's hypothesis, that 
 the power of binding the public to accept property on a testator's 
 own conditions, is of value in the discovery of new modes 
 of benefiting the public.'^' But I have come across many, very 
 
 * In the course of the subsequent discussion Mr. Fitch stated that lie 
 liad lately examined 120 Scholastic Foundations without finding any- 
 thing original or valuable in any of them.
 
 many, cases in which that power has visibly operated to de- 
 moralise the testator himself, and all whom his actions affect. 
 After my accustomed method I w^ill proceed to cite some. 
 
 The first case* is one of very blameworthy character, both 
 as regards motives and results. I have, on a previous occasion, 
 attempted to classify the motives of Founders, with a warning 
 as to the difficulty of referring any act to a single motive. In 
 this instance, however, the Founder appears to have been re- 
 markably single-hearted. His motive was spite. 
 
 George Jarvis w^as a man of property in Herefordshire. The 
 neighbours tell us that no charitable intentions entered his 
 mind until he was displeased at the marriage of his only 
 daughter, or at some incident therewith connected. He lived 
 to see his daughter become a mother and a grandmother, but he 
 nursed his resentment through all changes and chances of life, 
 His grandson had to sell a settled family estate to pay off 
 charges upon it. Jarvis was then heard to say that he could 
 clear the young man's estate and make him all right, but he 
 would not. He made a will, by which, with moderate excep- 
 tions, he disinherited all his issue, and gave his property (about 
 100,000/.) to trustees, bidding them apply the income to the 
 poor of three specified parishes, in money, provisions, physic, 
 or clothes. One Mr. Holford, a friend of his, to whom the 
 design of this will became knowm, remonstrated with him, say- 
 ing, " The infant children of your grandson cannot have dis- 
 obliged you ;" but he was unrelenting. He died in 1793, 
 without change of purpose. 
 
 The fruits of his act were, like its root, evil. The w^hole 
 population of all classes in the three parishes was, by the 
 census of 1801, under 900. To describe the state of things 
 thus produced, I borrow the language of Mr. Hare, who 
 ofl&cially inspected the place : — 
 
 " The distribution of 2,300Z. a year in alms brought into the 
 parishes, not labourers seeking employment where it was likely to be 
 found, but persons naturally desirous of participation in gifts which 
 could be obtained without labour. The landowners, or wealthy 
 inhabitants, were not likely to make any provision for the residence 
 of increased numbers, whose immigration they did not invite; but, 
 as habitations were necessary, the cottages became more crowded ; 
 houses, not more than sufficient for one family, were divided into two 
 
 * This account of Jain^is's foundation is taken mainly from a letter 
 written by Mr. Hare to the Bishop of Hereford, in the year 1 856.
 
 8 
 
 or more, and other dwellings were built, not the production of capital 
 directed to the supply of a social necessity, or in situations adapted 
 for the convenience of the employer and the employed, but built by 
 the poor themselves, or those little above them, some on waste and 
 others on remote spots, with regard to little else than mere shelter. 
 I will not venture to repeat the traditions which are current of the 
 evils which this state of things created ; but the inhabitants of the 
 country round these parishes, who remember their state some years 
 ago, are uniform in their testimony of the demoralisation of which 
 the poor were by this means made the victims. Their mode of 
 existence is said in some respects to have resembled that alternation 
 of want and repletion which is characteristic of the savage state. 
 The absence of regular employment for so many persons often occa- 
 sioned at times want and suffering, whilst the large quantities of food 
 distributed at other times led to great excesses. No habits of care or 
 providence taught them to husband that which it had cost them no 
 labour to obtain ; and where poverty was the title to participation, 
 there was little encouragement to that steady industry which could 
 alone avert it. Idleness, discontent, and improvidence were found to 
 be the fruits of this ill-conceived and ill-judged gift, to which must 
 be added an immorality of life, the results of which are yet distinctly 
 felt." 
 
 I need add no more, except to say that this miserable state 
 of things took place under a Chancery scheme settled by Lord 
 Eldon in the year 1802, and was not altered till the year 1852, 
 when an Act of Parliament was passed. This, by the way, is 
 just fifty years, the minimum time for which Mr. Mill thinks 
 that living men ought to submit to founders' experiments for 
 the public good.^' But with the subsequent history of the 
 foundation, unsatisfactory enough, we have now nothing to do. 
 Its origin and early history are a standing monument, though 
 only one of many, warning us not to trust our happiness to 
 the good feeling or the good sense of persons who know that 
 they will be safe from the disasters their acts may cause. 
 
 I turn now to a very different kind of man, one who may 
 be credited with a sincere wish to do well in the disposition 
 of his property. George Abbott, Archbishop of Canterbury, 
 
 * It is true that the foundation in question was for doles, which Mr. 
 Mill would proscribe. But in 1801 perhaps, most men thought alms- 
 giving was necessarily good. Certainly great quantities of persons left 
 money in this way, hoping to have it imputed to their credit in the 
 great account. And after all, the remark would not touch the present 
 question, which is, whether it can safely be permitted to men to play 
 fantastic tricks at the expense of posterity alone.
 
 was a man of learning and accomplishments, not unversed in 
 state affairs, and of more than average worth and integrity. 
 He was a native of Guildford, and desired to benefit the town 
 he loved. It seems that at an earlier date manufactures had 
 been carried on in Guildford, but that this trade had ebbed 
 away from it. Abbott's notion was to restore the trade, and 
 also to build an almshouse for the poor. 
 
 My principal reason for examining this case is, that it has 
 been brought forward as an admirable specimen of Founda- 
 tions, and as an example and reason why they should be more 
 encouraged by the law than they are. The most eminent 
 witness examined by the Parliamentary Committee, who re- 
 ported on this subject in the year 1844, was the late Sir 
 Francis Palgrave. His evidence is very voluminous, and full 
 of learning. He is a warm advocate for eleemosynary foun- 
 dations, and he selects Abbott's as worthy of especial eulogy. 
 It is a " munificent foundation," a "great and good design," 
 " ungrudging and unstinted bounty," and so forth. I take it, 
 therefore, that in the opinion of a man having most extensive 
 knowledge of such matters, and much interested in them, this 
 is as favourable an example as he can adduce. 
 
 Some questions were put to Sir F. Palgrave, with 
 a view to find out how much property the Archbishop 
 actually parted with in his lifetime. They were not an- 
 swered, and I do not propose to pursue them further here, 
 for they relate to the motives of the Founder, and we may 
 fairly in this instance assume them in his favour. The more 
 important question as to the wisdom and success of his ar- 
 rangements was not raised. 
 
 Now, Abbott died in the year 1633. He left one property 
 for the purpose of setting up manufactures of stockings and 
 other tilings, that the place might flourish as theretofore. 
 Other property was left to endow the alms-houses, which he 
 had built m his lifetime, for twelve men and eight women. 
 In about twenty years' time--' the Guildford people demanded 
 relief, showing that manufactures of different kinds had been 
 tried, had failed, and had " been found to be even prejudicial 
 to the town." This was in the time of the Commonwealth, 
 when foundations were dealt with somewhat more boldly than 
 at present. A decree of the Lords Commissioners, made in 
 the year 1656, put a stop to the manufactures, but, following 
 the cy-pres doctrine, and clinging to the notion of fostering 
 
 * Charity Commission Reports, vol. 31, p. 887.
 
 10 
 
 trade, they could find no better use for the funds than a distri- 
 bution among the poor honest tradesmen and housekeepers of 
 the town who might w^ant stocks. This led immediately to the 
 practice of money-doles. In the year 1785 an Information was 
 filed, stating ^' that the distribution of the money had been found 
 ^' to be of little use, and often to operate as an inducement to 
 " idleness and drunkenness." A fresh decree was made, leaving 
 still a moiety for the doles, and devoting the other moiety to the 
 establishment of five additional almshouses. This arrange- 
 ment was, as may well be conceived, no great improvement. 
 Another Chancery suit was set on foot, and in 1855 the court, 
 happily finding the ground very much cleared by the decree 
 of 1656, made over the whole fund to a middle school. So 
 much for this honest man's attempt to bring back trade to 
 Guildford. Two centuries of failure and degradation have 
 resulted from it. What may yet result is hidden in the womb 
 of the future. As for the almshouse, it would seem to be 
 much like other institutions of the same kind — not worse than 
 its neighbours, and not better. The almspeople were made a 
 corporation, so that a number of old illiterate paupers became 
 owners and managers of what was to them a large property. 
 The mismanagement was great, and on this ground the corpo- 
 ration has recently been dissolved, and the management placed 
 in other hands. I have not come across any proof that the 
 town has derived any benefit whatever from the almshouse, 
 and as, whenever similar cases are examined with a view to 
 test their working, it is usually found that almshouses are no 
 benefit but a burden to the places where they exist, so it may 
 be at Guildford. 
 
 The inference I draw is, that even could we have honesty 
 of purpose on the part of all Founders, we cannot trust their 
 wisdom to make arrangements for the conduct of their 
 neighbours' aiFairs. 
 
 But the great majority of Foundations occupy a middle 
 space between the consciously bad and the consciously good 
 motives. They proceed from a mixture of motives, and are 
 characterized by a very small amount of thought for others. 
 When thought is bestowed, it is generally for the founder's 
 own self. 
 
 Take the following mixture of bitterness, vanity, and 
 eccentricity, in one Thomas Nash : — 
 
 " I do also hereby give and bequeath to the mayor, senior alder- 
 man, and town-clerk of Bath, for the time being, the sum of 50/. per
 
 11 
 
 annum, in trust, payable of the Bank Long Annuities, standing in 
 my name at the Bank of England, for the use, benefit, and enjoy- 
 ment, of the set of ringers belonging to Abbey Church, Bath, on 
 condition of their ringing on the whole peal of bells, with clappers 
 muffled, various solemn and doleful changes, allowing proper 
 intervals for rest and refreshment, from eight o'clock in the morning 
 until eight o'clock in the evening, on the 14 of May in every year, 
 being the anniversary of my wedding-day ; and also on every 
 anniversary of the day of my decease to ring a grand bob major and 
 merry mirthful peals, unmuffled, during the same space of time, and 
 allowing the same intervals as before-mentioned, in joyful com- 
 memoration of my happy release from domestic tyranny and 
 wretchedness. And for the full, strict, and due performance of 
 such conditions, they, the said ringers, are to recieve the said 501. 
 per annum, in two payments of 251. each, on those respective days 
 of my marriage and decease. And now that dear divine man — (to 
 use Mrs. Nash's own words) — the Rev. P. B., may resume his 
 amatory labours without enveloping himself in a sedan-chair for 
 fear of detection." 
 
 This gentleman did not give much thought to the welfare of 
 the ringers, who are the objects of what is conventionally 
 called his " bounty," nor to those of society at large. 
 
 Take again such an instance as this. The Lord of the 
 Manor of Barton founds a school for the poor of several 
 parishes. There are to be forty children, all of whom are to be 
 appointed by the lord of the manor. All the children are to 
 be taught to read, but none are to be taught the dangerous 
 arts of writing or arithmetic, except such as the lord of the 
 manor shall think fit. I need hardly say that difficulties 
 have arisen in the conduct of this school. Is this one of the 
 experiments to which we ought to submit ourselves for 50 or 
 100 years ? The foundation was in the year 1(S07. 
 
 Now, will any one say that the spite, the short-sightedness, 
 the narrow spirit, the carelessness evinced by different classes 
 of Founders, is deserving of our respect, or that it can benefit 
 the public to accord to them even one year of absolute power 
 over property which the course of nature has compelled them 
 to relinquish? Those who contend for this are at least bound 
 to show on what experience they found their opinion. For 
 myself, I will venture here to repeat words that I have used 
 before :* — 
 
 * Lecture on the " Characteristics of Charitable Foundations in 
 England," p. 33.
 
 12 
 
 *' It may be that private endowments were useful in the times 
 when they were first devised. Like monasteries and trade guilds, 
 they may have been the hard shell protecting a kernel of great virtue, 
 destined one day to germinate into life, and shatter its protector into 
 fragments. It may be so, though except as to institutions for learning 
 or religion, it is not easy to think that it was so. To me it seems 
 that, in this matter of Charitable Foundations, we are reaping simply 
 as we have sown. We have committed a vast power to fortuitous and 
 irresponsible hands ; and they have used it according to the measure 
 of their goodness and their wisdom. It is difficult for the wisest 
 and the most patriotic man to see clearly the needs of the age he 
 lives in. We have said that any man, however selfish or stupid, 
 may assume to foresee the needs of- all future time. It is much to 
 permit that any one should force his countrymen to take, on his own 
 terms, wealth of which he denudes himself. We have said that he 
 may force them so to take wealth of which he only deprives otheis. 
 What wonder if there is poverty of result from acts, for the per- 
 formance of which we require neither wisdom, nor public spirit, nor 
 self-denial." 
 
 But Mr. Mill uses other arguments. He thinks that the 
 right to impress on property trusts affecting the public stands 
 on the same grounds with all other testamentary power. He 
 says : — 
 
 "If it is righ that people should be suffered to employ what is 
 lawfully their own in acts of beneficence to individuals, taking effect 
 after their death, why not to the public f 
 
 Why, for two very plain reasons. First, because a man may 
 very easily be, and usually is, wise enough and concerned 
 enough in the result to choose his successors, but few are con- 
 cerned enough in the result, and no one is wise enough to 
 judge what may be the needs of society even a few years 
 hence. And secondly, if a private person receives property 
 coupled with injurious conditions, he may get rid of the pro- 
 perty and the conditions together. But the public is the ulti- 
 mate heir; it cannot renounce the gift; it is to be bound to 
 accept it, conditions and all ; for ever, according to our present 
 law, and according to most opinions ; for fifty or a hundred 
 years according to Mr. Mill. 
 
 To show the singular tenacity of opinion on this point, I 
 refer again to Sir F. Palgrave's evidence before the com- 
 mittee, merely remarking on the attitude of the mind which, 
 knowing of the case mentioned in answer 176, could utter the 
 answer 175 : —
 
 13 
 
 "174. Would you not leave a large power to some competent 
 tribunal to alter the application of charities when the prescribed 
 means are found to be comparatively inadequate to attain the end 1 — 
 I would leave the matter, as it now is, to the Court of Chancery 
 or to Parliament, between whom any particular evil would be 
 redressed. 
 
 " 175. Chairman. — In point of fact, are they cases which happen 
 with sutficient frequency to make you think that a sufficient gua- 
 rantee 1 — 1 think they are ; I am not aware of any charity whatever 
 subsisting for any purpose grossly inconvenient or improper. 
 
 "176. Mr. C. BuUer. — Supposiug, for instance, at the time the 
 Mauichaean doctrines were prevalent in England, and there had been 
 an alarm in the mind of some pious person respecting the prevalency 
 of these doctrines ; suppose he had left a dozen preacherships to 
 preach against the Manichgean doctrines, would you perpetually 
 devote these foundations to that purpose, which by this time would 
 become so utterly useless ; or would you give some competent 
 tribunal a power of alteration for religious purposes with the applica- 
 tion of these funds? — I should say that I would leave that to the 
 discretion of the trustees and the preacher ; without alluding to 
 Manichaean doctrines in particular, he might preach against other 
 errors sufficiently near these doctrines to satisfy his own conscience, 
 and that of the trust. It is impossible to deal with extreme cases ; 
 when they do arise, the law and Parliament always deal with them. 
 There is a case at Norwich, where there is a foundation for the 
 Walloons ; the minister preaches annually a sermon in Low Dutch, 
 which nobody understands. 
 
 " 177. Sir G. Grey. — Is that the condition? — Yes; the sermon is 
 preached every year ; it was for a long time preached by one who 
 had had his education in Flanders; I believe the clergyman now 
 learns a sermon by heart and preaches it. 
 
 " 178. Mr. C. Buller. — Do not you think that went rather to a 
 desecration than to any good religious object? — It may be so ; I 
 would not deal with it." 
 
 Of course, if a man is dealing with " what is lawfully his 
 ovra," there is an end of the question. And this leads me to 
 Mr. Mill's next argument. He says that to treat property 
 given to public uses as given to the public, and for the public 
 to insist that they understand their own aiFairs best, and will 
 apply the property, not to what they see to be hurtful, but to 
 something else, is an offence against property as well as 
 liberty.* That it is an offence against that law of property 
 
 - * I believe I am not misrepresenting the position, though abbrevia- 
 tion is necessary. In pp. 372-381 of his Essay, I understand Mr. Mill
 
 14 
 
 which happens to exist in England we all know, for it is that 
 law of which we are complaining. The expression muet mean 
 that it is an offence against what ought to be the law of 
 property. It is no oflPence against the law of that large 
 portion of the world which has adopted the Code Napoleon^ 
 nor against the law of Austria or of Prussia.* Other civilised 
 countries have thought it proper that the public should have a 
 voice in the matter of their own improvement, and not be 
 improved after the fancy of any private person. And this law 
 is not, like our law, an ancient result of a number of beliefs, 
 feelings, and political needs, now long extinct, but the result 
 of deliberate policy, and one of the later products of civilisa- 
 tion. Why, then, ought the law of property to give every 
 rich man a definite term of years after his death in which he 
 may, according to the extent of his riches, work his will upon 
 the public? Why should Christopher Tancred arrange, for 
 100 years, that twelve human beings should be confined in 
 what has been called '' a hell upon earth " because he wishes 
 his land to be kept together and called by his narne? Why 
 should honest Archbishop Abbott be allowed to inflict misery 
 upon the town of Guildford for 100 years, because, in his 
 blindness and ignorance of economical laws, he thinks he can 
 bring back the trade of the place? Did Abbott or Tancred 
 create the wealth they had in life ? Because a man is fortunate 
 enough to enjoy great possessions in his lifetime, is that any 
 reason why he should be invested with extraordinary and unal- 
 terable legislative powers after his death ? One man, say Mr. 
 Mill, devotes himself to mental cultivation, to speculations on 
 most important subjects, to efforts at redressing social wrongs ; 
 
 to contend that, except in cases of clear and positive public mischief, 
 every man has a right to a term of years during which he may devote 
 his property to experiments on the public welfare. 
 
 * See the evidence of Mr. Adolphus Bach, given before the Oonimittee 
 of 1844, pp. 95 et seq. " I have not myself any original acquaintance 
 with the law of Austria or Prussia, and very little with the Code Napo- 
 leon ; but it so happened that, when at the bar, I had to argue the case 
 of Lord Henry Seymour's will, and to look into the French Law of 
 Charitable Bequests for that purpose. That law affords striking 
 evidence of the great supei-iority of the French law to our own in this 
 respect. Under the same bequest 'to the hospitals of London and 
 Paris,' the French enjoy their share without a word of dispute, while 
 over the English share years of expensive litigation have taken place, 
 and it is not yet ready for use. This is entirely owing to our supersti- 
 tion about the ' Founders' intentions.' The French take it as a gift to 
 the public, and use it accordingly."
 
 15 
 
 he obtains fame, esteem, influence, all the nobler objects of 
 man's ambition ; but there is one thing of which he does not 
 get much, and that is money. Another man, say Mr. Thorn- 
 ton, devotes himself to the turning and making of money, and 
 his industry and acuteness are rewarded with a gi'eat quantity 
 of it. But what is there in this which shall induce us to say 
 that the laboiu-er in the field of wealth is, to the extent of his 
 two or three millions, to become a legislator for us by laws 
 unalterable for a century, w^hile no such power can be exer- 
 cised by the labourer in the field of intellect ? No ; the rich 
 man may well be content with his own enjoyment of his 
 riches, and his power of choosing a successor who may enjoy 
 them in like manner ; and if he chooses the public for his suc- 
 cessor, let him do so ; but then the public must be the owner 
 of its own property, and not be treated as a child, unfit to 
 judge what is for its own good, and to be placed under the 
 dominion of trustees and guardians even for a term of years. 
 To contend for the emancipation of the public from this 
 tyranny may be wrong on other grounds ; but to say that it is 
 an infraction of the laws of liberty, or of property, is to take 
 those names in vain. 
 
 I have now done with the arguments advanced by Mr. Mill, 
 but I cannot leave the subject without a protest against the use 
 of a sort of regulation-language, which one meets with far too 
 often. To talk of the piety or benevolence of people who give 
 property to public uses, is a misuse of language springing from 
 confusion of ideas. As a matter of fact, I believe, as I have 
 elsewhere said more at length, that donors to public uses are 
 less under the guidance of reason and conscience, and more 
 under the sway of the baser passions than other people. But, 
 supposing it otherwise, what possible reason can there be for 
 attributing to them higher motives then actuate those wh(5 
 leave their property to private persons ? A man is quitting 
 this world, and cannot carry his riches away with him ; he 
 nuist leave them for other, and what tittle of beneficence can 
 there be in saying w4io that other shall be ? Whether he gives 
 it to A or B, and whether his donee represents public interests 
 or private, his beneficence surely stands at the same level. He 
 may perform this act, as he may perform any other, wuth or 
 without good feeling and good sense, but how the choice of one 
 heir instead of another enables us to judge of this, unless we 
 know many other circumstances, it is hard to see. But test 
 this language as we should test everything, by comparison with 
 facts. There is somethinor orhastlv in the thous^ht of Tancred's
 
 16 
 
 beneficence. To talk of the beneficence of Jarvis seems like a 
 bitter and hideous jest. A man cherishes his wrath, originally- 
 unrighteous, against those who are closest to him, for a long 
 series of years ; transmits it from the parent to the children 
 unto the third generation ; and adjusts his property for the 
 very purpose of giving pain to some in a way which spreads 
 ruin and corruption broadcast among others. And then, 
 forsooth, we are to be told of his beneficence. I trust that 
 when these matters have been more thought of, we shall hear 
 no more of such misplaced encomiums. 
 
 Another reason sometimes assigned for giving an absolute 
 term of years for the exercise of a testator's power, is the 
 analogy afforded by the testamentary power over gifts to 
 private persons. If, indeed, this is brought forward merely by 
 way of analogy and illustration, the foregoing considerations 
 are sufficient, though many more might be added* to indicate 
 the difference between the two cases. But if urged, as it fre- 
 quently is, by way of substantive argument, we are driven to 
 consider the propriety of the existing law of posthumous dis- 
 position to private uses.f Time will not suffer me to enter 
 into anything approaching a full discussion of this topic, which 
 is hardly less complicated, and is of far more extensive social 
 effect than the law affecting public uses. I can do little more 
 than indicate the nature of the reasons which lead me to 
 think that the dead have too much to say to all our arrange- 
 ments. 
 
 I have elsewhere stated what the law of perpetuity is, and 
 have briefly sketched its origin. j: It was not the result of any 
 
 * As for instance that on which Turgot principally insists, the im- 
 possibility of finding trustees who will enter zealously into the founder's 
 views ; expenses of management ; temptations to speculation ; inevit- 
 able quaiTels between the various claimants of a legal right to share 
 in the property — all direct consequences of the Founder's continued 
 ownership. 
 
 t A perpetuity is a perpetuity, whether the uses are public or private. 
 This has always been sooner or later felt, though it is singular how 
 separate the two classes have been kept. Legislation was aimed at gifts 
 to religious bodies as early as Magna Charta, but secular corporations 
 were not touched till the reign of Richard II. Licenses to make parks 
 were subject to the same conditions as licenses to amortise land in 27 
 Edward I. Perpetual entails were not got rid of till the reign of 
 Edward lY., and then by judicial process. But the dead hand was 
 shaken off private property much more effectually than off public, 
 though the efforts came later in our history. 
 
 "l See Lecture, pp. 14< et seg
 
 17 
 
 material deliberation, neither did it drop from heaven. It was 
 invented by a series of judges, and so grew up by force of cus- 
 tom, like some other of our institutions. The effect, as most 
 of you will remember, is to allow the ownership of property 
 to remain in suspense, in other words to belong to the settlor 
 himself, for the lifetime of any number of living persons, and 
 21 years after the death of the survivor. It probably repre- 
 sented the prevailing views of the great landowners of the 
 time, otherwise it would hardly have been promulgated, or, if 
 promulgated, would have excited opposition. It ought not 
 therefore much to surprise us if a law framed from two to 
 three centuries ago to suit the people who had only recently 
 been rid of perpetual entails, should be found now to be too 
 restrictive of freedom. I, for one, think that it is so. In this 
 case also I claim for each living generation the full dominion 
 over the fruits of the earth, and the power of judging for itself 
 what is most for its own good. 
 
 Now the effect of one law of perpetuity is this — that the 
 settlor of property can take the dominion over it away from 
 those whom he knows, to confer it on those whom he does not 
 know, nay, on those who are unborn and may never come into 
 existence. This power is very commonly exercised to its 
 fullest extent, merely because it exists, and without the 
 slightest reason beyond the pleasure of exercising power. A 
 testator will not allow his son, though he may trust him and 
 love him, to make arrangements for his own children at a time 
 when he knows their number, their characters, or their needs, 
 but insists on making those arrangements himself, some thirty 
 or forty years beforehand, when nothing whatever is known of 
 the circumstances to which they will apply. The result is 
 that, among the richer classes of this country, a very large 
 number of families have their property governed, not accord- 
 ing to their own desires or necessities, but according to the 
 guesses or the fancies of some one who died long ago, and who 
 could not, even if he wished, make the best arrangements for 
 them. If we were now proposing to enact such a law, this 
 statement of it would probably be enough to ensure its rejec- 
 tion. What could be more irrational than to maintain that 
 each generation shall be considered more competent to foresee 
 the needs of the coming one than that one, when arrived, is to 
 see them ; and that the disposition of property shall never be 
 brought abreast of the existing age, but shall always be subject 
 to the views of the past age. Yet, such is the direct effect of 
 our law of posthumous disposition ; and according to my
 
 18 
 
 experience the phfenomena are much in accordance with the 
 law. As the t/ee is, so is the fruit. The cold and numbing 
 influence of the dead hand is constantly visible. 
 
 I am not going to discuss the more public side of this 
 question, to which task indeed I am not equal. The law 
 is both attacked^ and defended on grounds of general policy 
 and of political economy.^' Those I pass by now. Whether 
 a curtailment of the power of settlement would tend to break 
 up properties,! or, if it did so, what might be the political 
 effect, 1 do not presume to say. Such inquiries seem to me of 
 a very remote and conjectural character, even when conducted 
 by competent persons. What I consider to be not conjectural, 
 but y)roved by experience in all human affairs, is, that people 
 are the best judges of their own concerns ; or if they are not, 
 that it is better for them, on moral grounds, that tliey should 
 manage their own concerns for themselves ; and that it cannot 
 be wrong continually to claim this liberty for every generation 
 of mortal men. 
 
 But there is another side of the question with which my 
 professional experience has made me familiar, and this is the 
 department to which the law directly applies, and in which it 
 produces its immediate effect. The interior of every family of 
 any opulence is affected by the law of posthumous disposition, 
 and the effect of the great power allowed to settlors is very 
 prejudicial. I am not speaking at random, but with many 
 instances present to my mind, in saying that a strict settlement 
 is apt to place every one concerned in a false and constrained 
 position. Suppose that land is the subject of it. The father 
 of the family, cut down to a tenancy for life, resents the 
 restraint, disclaims responsibility for the inheritance, and declines 
 to assist it by improving, or to spare it from charges by saving. 
 If he has only dauii^hters, the matter is worse. On his death, 
 they and his widow will have to leave their home, of which 
 some collateral, more or less distant, will take possession. 
 
 * Usually under the name of tke law of primogeniture, a name 
 inaccurate and misleading. The important law which people really 
 wish to discuss may be called the law of perpetuity or of settlement, 
 or, as I have usually called it here, of posthumous disposition. 
 
 t As far as my own small experience goes, I have found that strict 
 settlements do not foster, but retard accumulation of land, a process 
 which, I suspect, is due partly to moral causes, and chiefly to mone- 
 tary ones, and not in any degree to the state of the law under con- 
 sideration.
 
 19 
 
 Why should things be made comfortable for him ? If he has 
 a son, that son is sure of his succession ; he owes his property 
 to his grandfather, whom he never saw, and feels independent 
 of all obligations. If unable to make satisfactory arrange- 
 ments with his father about money, he will raise it by 
 post-obits. If there is no issue, the relations between the 
 life-holder and his collateral successors are much the same. 
 This is the case, supposing him to be a man who does not 
 exceed his income. But supposing him to be extavagant, 
 then is seen a most melancholy sight. A family with wealth 
 enough to provide for their wants and give them some start in 
 the world, but with it all placed out of their reach during the 
 father's life ; the income goes to his creditors ; the children 
 may grow up in a state of ignorance and destitution; he is 
 trying how far, by wheedling trustees or by the astute exercise 
 of legal powers, he can encroach on their portions ; they are 
 expecting money in the future, and making no adequate exer- 
 tion in consequence. It is probable that many men would be 
 restrained from squandering their fortunes, if it were not for 
 the delusive idea that the capital is placed beyond their reach, 
 and will be saved from a wreck. But be this so or not, it is 
 better, far better, even for the children themselves, to say nothing 
 of the public at large, that they should, as regards inherited 
 property, stand or fall by their parents' acts, and that they 
 should not undergo the excessive trials which beset every one 
 who is poor now, but rich in expectancy. Strict settlements of 
 money differ in some respects from those of land, but their 
 effect on families is so alike that it is not worth while to pursue 
 the differences here. 
 
 Of course, I am not saying that the effects just described 
 are in fact the usual result of strict settlements. Men are 
 constantly better than their laws ; and family affection, pru- 
 dence, self-respect, and a sense of right and justice are always 
 operating, and in most cases with success, against the tendencies 
 I have mentioned. All I say is, that these virtues would 
 operate more freely and effectually if people were left with 
 more freedom and more responsibility ; that settlements have 
 a tendency to blunt the sense of responsibility, by shackling 
 freedom of action, and to impair the delicate interdependence 
 of parent and child ; that these tendencies come frequently 
 into partial action, and not very infrequently into full-blown 
 action. My belief therefore is, and has long been,^ that 
 societv at large would gain much, and lose nothing, if the
 
 20 
 
 power of posthumous disposition were confined to persons 
 living at the date of the disposition.-^ 
 
 There is now another school of opinion on the subject of 
 Foundations to which I must advert. Of this school Mr. Lowe 
 is the most prominent teacher. He, it seems, would hardly 
 admit of any endowments at all, except perhaps in the shape 
 of buildings, libraries, or such like things, producing no 
 income.f To this I cannot assent. Mr. Lowe's late pamphlet 
 insists on considerations of the greatest importance, perhaps of 
 more importance than any other class of considerations. And 
 if in any practical matter we lose sight of the maxims that we 
 must offer to people the thing they want, and not the thing 
 they don't want ; that the users of an article are, in the long 
 run (longer or shorter according to the simplicity of the 
 article), the only available judges of its value ; and that the 
 exertions of the mass of mankind must be stimulated by their 
 interest, we shall come to disaster. Moreover, his argument 
 has the great merit — which ought not to be, though it is so 
 singular — of being founded on experience, and affording solid 
 grounds for assent or dissent. My reasons for dissenting from 
 his conclusions are as follows. 
 
 In the first place, I think he has not borne in mind the 
 cause of the failure of endowments. That failure is directly 
 traceable to Founder-worship, to our slavish and liberal adher- 
 ence to the directions of Founders, instead of operating on the 
 funds by public authority, and adjusting them from time to 
 time, as change of circumstance requires. Having gone on 
 the foolish principle of allowing the Dead to govern the Living, 
 we cannot be said yet to have tried the effect of endowments. 
 We are at least bound to try whether there is not wisdom enough 
 and strength enough among us to convert endowments to really 
 useful public objects. And I, for one, do not see why this 
 
 * The strongest reasons to be urged against strict settlement apply 
 with less force to ordinary marriage settlements ; and there are reasons 
 in their favour. I believe, however, that they are not found necessary 
 iu any country but this ; and I cannot help thinking that they may hold 
 a different position in this country when we have got rid of our barba- 
 rous laws relating to married women, and have adopted some more 
 civilized regulations. Still, as a rule, they are dictated by motives of 
 prudence, and not by_ love of power, and their propriety is to be 
 discussed on considerations foreign to my present purpose. 
 
 t " Endowment or Free Trade, by the Eight Hon. R. Lowe, M.P. 
 Bush, 32, Charing-cross. See also an admirably-written criticism on 
 Mr. Lowe's Pamphlet in Macmillan's Magazine for April, 1869.
 
 21 
 
 should not be effectually done, if the nation becomes heartily 
 in earnest about it. 
 
 Sec.ondly, I think that Mr. Lowe has overrated both the 
 ability and the will of people to provide themselves with those 
 advantages (a sound middle-class education is the subject he 
 discusses) which it is designed to give them by means of 
 endov/ments. It may be that, in progress of time, they may 
 become able and willing, as undoubtedly they are more so now 
 than they were fifty years ago. But that happy time has not 
 arrived yet, and a judicious use of endowments may tend to 
 hasten its arrival;^. 
 
 Thirdly, I think he underrates the effect of a good school 
 supported by endowment. He says that the parents are the 
 ultimate judges of the work of schools, and he adds that '^ the 
 " whole and sole use of endowments is to influence, in other 
 *' words to bribe, that judgment." That the parents must be 
 judges in the long run I agree, but in such a matter as educa- 
 tion the run may be a very long one, and the judgment of 
 parents may be, not bribed, but legitimately influenced by the 
 spectacle of a school unpopular for a time, but justifying itself 
 by success. Now, the temporary unpopularity would ruin and 
 destroy a private school, but the endowed school can bear up 
 against it, and, if sound, will win its way. The private school 
 may be sound, but must be showy. The endowed school can 
 affort to dispense with show till such time as its principles 
 have been fairly tried. And this power, valuable at all times, 
 seems to me peculiarly valuable in a time of change, when the 
 old staple subjects of instruction are very largely encroached 
 on, and other subjects are claiming admission on equal terms, 
 or asserting, as Professor Huxley asserts on behalf of physical 
 science, a permanent right over all rivals. 
 
 Having now reviewed the principal doctrines and arguments 
 on this subject, I am in a position to state the two simple 
 principles which should be established with respect to Foun- 
 dations. 
 
 The first is, that the public should not be compelled to take 
 whatever is offered to it, but should here, as in other countries, 
 have the right of considering whether that particular use 
 which the Founder has fancied shall take effect, or whether 
 the property shall be turned to some other public use, or given 
 back to private uses. In short, that if the public is chosen 
 as a legatee, the legacy shall be, as it ought to be, an uncon- 
 ditional one. Of course, the public would speak through some 
 tribunal constituted for the purpose, which would probably
 
 22 
 
 act on principles not rigidly defined, but not difficult to under- 
 stand. A certain deference should be paid to the donor's 
 wishes, so that they, or something akin to them, should have 
 priority among claims of equal, or nearly equal, urgency, but 
 they should never be allowed to interfere with the public 
 welfare. As this principle would operate on the Future, I do 
 not see why, if accepted, it should not be applied with great 
 freedom. 
 
 Some who recognise the absurdity of compelling the nation 
 to take whatever terms are oiFered to it, have thought that 
 there should simply be a power of rejection, leaving the 
 property to go as in case of intestacy. I think, however, that 
 there would be much more likelihood of justice being done, or 
 rather of reasonable expectations not being disappointed, if it 
 were left in the hands of a public office, to dispose of the 
 property in all cases. The same generous consideration which 
 the Crown now exercises in certain cases of intestacy, would 
 be exercised when, as in the cases of Jarvis and Tancred, a 
 man had disappointed just expectations for the gratification of 
 base passions. 
 
 The second principle is, that the grasp of the Dead Hand 
 shall be shaken off absolutely and finally ; in other words, that 
 there shall always be a living and reasonable owner of property, 
 to manage it according to the wants of mankind. This again 
 must be a public tribunal, charged with the duty of adjusting 
 to new objects all Foundations which have become pernicious 
 or useless. This principle, though in my judgment the very 
 salt and savour of Foundations, and absolutely essential to 
 preserve them from corruption, would, as affecting the past, 
 require to be applied with great reserve, delicacy and tender- 
 ness. Local interests and feelings must be carefully ascer- 
 tained and consulted, and occasionally even efficiency postponed 
 for the sake of conciliation. There would, however, be strong 
 ground to hope that, if steadily pursued for a length of time, 
 the living principle of using property so as to benefit mankind 
 would with the assent of the great majority, prevail over the 
 deadly superstition of blind obedience to the commands of the 
 dead. 
 
 We are, indeed, told by way of objection to such pro- 
 posals, that if people are to have their gifts interfered with 
 by the public, they will not give to the public. To this 
 I answer first, that it is a pure guess without proof or 
 probability. In other countries, people are not deterred 
 from giving to the public by the knowledge that when they
 
 23 
 
 have given they cannot themselves remain owners of the gift. 
 In this country, people do leave absolute legacies to private 
 persons, though the legatee may divest himself of the property 
 the next day, or use it in a way the testator would highly 
 disapprove of. The objection assumes that the donors of 
 property to public uses are the most suspicious, narrow, and 
 unreasonable of men ; that they will persist in thinking that 
 they can foresee what is good for the Future better than tlieir 
 successors can see what is good for the Present ; and that 
 they cannot bear to be fairly forewarned that each generation 
 will insist on using property for its own good. But if we are 
 to guess on this subject, I prefer to guess on grounds which 
 are at once more probable and more creditable to human 
 nature. It is more likely that the spectacle of large charit- 
 able funds, creating ro scandal, bat thoroughly well admi- 
 nistered by each generation for its own best interests, would 
 induce noble and reasonable minds to give more freely than at 
 present. But there is another answer, more important and 
 conclusive. If people will not give freely and generously ; if 
 they will not really give ; if they insist on only pretending to 
 give, while all the while they are stipulating to remain owners 
 themselves, then, say I, " Let their money perish with 
 '' them ! " It is such false gifts as these which have created the 
 scandals and the demoralizing character of so many of our 
 charitable institutions, or at least have prevented their 
 improvement. They are like the gifts of malignant spirits of 
 which the old fairy tales tell us; they look like gold, but turn 
 to something foul in the handling. They are fatal. Let us 
 have no more of them. We have too many already. 
 
 Another objection touches on a subject on which very few 
 can speak plainly without giving oflence, and, though not 
 intending any offence, it is unlikely that I should be among 
 the happy few. It is asked, as though the question were 
 unanswerable, whether a public tribunal shall interfere with 
 Foundations for the support of opinions? The opinions for 
 which Foundations are established are usually of a theological 
 character, and. it is thought that Foundations for this purpose 
 are more valuable and sacred than others. Now, as to their 
 being more valuable, I will not hesitate to say that Founda- 
 tions attaching endowments to the holding and teaching of 
 prescribed opinions are (if they are to he unalterable) the very 
 worst kind of Foundations that can be conceived ; for 
 experience shows that the opinions to which men have 
 attached property change and become extinct, (sooner or later
 
 24 
 
 according to their depth *ind force) and then you have a direct 
 premium on profession without belief. But that which tends 
 to corrupt the noblest part of man, the very eye of the soul, 
 his perception of truth, is as evil a thing as can be imagined. 
 (Suppose, for intance, that a large estate had been settled in 
 the 16th century for maintaining the geocentric theory of the 
 universe. It was believed implicitly ; it was supposed to rest 
 on the clearest testimony of revelation; to doubt it was 
 impious. One or two in the pride of their wayward hearts had 
 dared to express an opposite opinion. What more pious than 
 to found a college for teaching this vital truth, which lay at 
 the bottom of so many other beliefs about man's relations to 
 his Maker ? Suppose then that this had been done, and that 
 now, when every child at a national school knows the con- 
 trary, solemn lectures were delivered to show that, in some 
 sense or other, astronomical, metaphorical, or mystical, the 
 sun travelled round the earth. This would be something like 
 the Walloon sermon at Norwich, which nobody understood. 
 But is any public authority to interfere with so degrading a 
 mockery ? Sir F. Palgrave would say, '' No, you cannot 
 interfere with the authority of the Founder." I venture to 
 say, Yes you can, and you ought. As long as any man 
 believes any opinion whatever, let him proclaim it without 
 molestation from the house-tops. But to allow that property 
 shall be devoted for ever to bribing people into teaching what 
 they do not believe is monstrous. 
 
 I have put an hypothetical case ; let me refer to a real one, 
 which has been mentioned before.* It is that of a gift to propa- 
 gate the sacred writings of Joanna Southcote. In that case, if 
 the property had not luckily all vanished, we should now have 
 a chapel or a lecture-room, with a paid preacher proclaiming 
 aloud as true what neither he nor anyone else believed, and 
 there would be no power of interference unless by special Act 
 of Parliament. For the trust is to propagate the writings ; 
 the act is, as it should be, a lawful one ; and as long as it is 
 done (whether by preaching or printing does not much signify) 
 the trust is duly performed. But that there should be no legal 
 means of putting an end to such a trust is a great defect of our 
 law. 
 
 Now, the number of Foundations made to maintain theolo- 
 gical opinions in this country is enormous. Some of the trust 
 deeds are very minute as to the tenets to be believed. I quote 
 
 * Lecture, pp. 4, 5.
 
 25 
 
 from one wliich has been quite recently in my hands. Those 
 who benefit by this Foundation are to believe and teach : — 
 
 " The one only living and true God, the Creator and Upholder of 
 all things ; the Scriptures of the Old and New Testament as the 
 Word of God and the only rule of faith and practice ; the doctrine 
 of the Trinity, including the Deity and distinct personality of the 
 Father, of the Son, and of the Holy Spirit ; the doctrine of original 
 sin, and the entire depravity of human nature; eternal and personal 
 election : particular redemption ; atonement for sin by the death and 
 sacrifice of Jesus Christ; justification by his imputed righteousness 
 through faith ; the necessity of regeneration and sanctification of the 
 Holy Spirit ; of repentance towards God and faith in Jesus Christ 
 in order to salvation, and the final perseverance of the saints. Also 
 believing that baptism by immersion only and the Lord's Supper are 
 to be administered to such alone who profess faith in Christ, and 
 whose conduct is consistent with such profession ; that the law of 
 God is a rule of moral conduct to believers ; that there will be a 
 resurrection of the dead, both of the just and the unjust, and a day of 
 final judgment, and that the wicked ' shall go away .into everlasting 
 punishment but the righteous into life eternal.' " 
 
 This deed was framed in the year 1836. Here are contained 
 a great number of abstruse doctrines, as to which it is quite 
 certain that the people interested in the Foundation will change 
 their minds, I suspect I could point out one as to which they 
 have changed their minds already. Such changes have fre- 
 quently occurred, and have led to severe litigation. 
 
 A rough though wise method of stopping a number of law- 
 suits was devised in the Dissenters' Chapels Act, which 
 secured the possession of congregations who bad drifted away 
 from the original tenets of the Founders, and whose expulsion 
 was sought by orthodox representatives of those Founders. 
 But it seems to me that it would be more wise and statesman- 
 like to engraft into the law powers to adjust these deeds from 
 time to time, according to the true needs and beliefs of the 
 community among whom the Foundation was intended to work, 
 and had always been working, so that if they came, saying, 
 " Here is a doctrine which has dropped out of our real creed ; 
 we say nothing about it ; but we should feel easier if relieved 
 from any legal obligation to hold and teach it," relief of that 
 sort should be granted to them. 
 
 Where a Foundation is acknowledged to be national, it is 
 agreed that, on adequate cause being shown, the creeds and 
 formularies shall be altered. Establishments co-extensive 
 with the nation are indeed such vast and important machines
 
 26 
 
 that it is right that no alteration should be effected in them by 
 any power short of the direct action of Parliament. But that 
 Parliament may make the alteration is doubted by no lawyer 
 or statesman, and by not many ecclesiastics. The right of 
 Parliament (as distinct from its power) to vary the terms of 
 private theological Foundation would be seriously disputed. 
 The Church of England has a code of doctrine much more 
 extensive than the private one I quoted just now. But at this 
 moment there is a strong and growing desire for revision of the 
 Liturgy and Creeds, and I need not refer to their effective 
 revision at former periods of our history. 
 
 I, therefore, can see no reason why Foundations for the 
 maintenance of opinions should not be placed on precisely the 
 same footing as other Foundations.* To the truth or falsehood 
 of the opinions themselves no human tribunal ought to have 
 anything to say. That must be left in the province of argu- 
 ment and persuasion. But a human tribunal can easily ascer- 
 tain whether events have occurred which demand an alteration. 
 These Foundations are subject to precisely the same incidents 
 as others. The community among which they work may dis- 
 appear altogether, or may cease to have any regard for the 
 opinions, and then the Foundation is useless. It may be impos- 
 sible to find even one teacher who really believes them, and 
 then the Foundation is corrupting and immoral. In all such 
 cases there should be, as in the case of almshouses, schools, or 
 doles, a power of adjustment to the changing circumstances of 
 the day. 
 
 * It is an opinion wliicli I have not discussed here, as not deeming it 
 practical enough for the present occasion ; but it is well worth consider- 
 ing whether the difficulties attending Foundations for opinions are not 
 such as make it more expedient to prohibit them altogether, except 
 national ones so constituted as to be kept constantly in sympathy with 
 the nation at large, and that they should dispense with doctrinal tests 
 as far as possible. I have lately been told by a very eminent member 
 of a dissenting body that, in his oj)inion, the attachment of property to 
 opinions makes great mischief. It is remarkable that Ignatius Loyola 
 should have been highly apprehensive of the effect of endowments. He 
 forbade his followers not only to solicit gifts, but even to sue for them 
 if made by a testator and refused by his executor. His object, says a 
 follower of his, was that he wanted to keep the cleverest men in the 
 body, and feared that endowments might be the means of depriving it 
 of its brightest members. He had doubtless pondered over the greatest 
 contest that ever took place between men bound by endowments to a 
 set of opinions and others who were unfettered, and knew on which side 
 the energy was, and why. See the evidence of Mr. Trappes, given to 
 the Mortmain Committee of 1844.
 
 27 
 
 And now I have performed the task which I undertook, 
 viz., to point out the objects at which we ought to aim. 
 While stating my reasons fully, and illustrating them by 
 examples, I have dwelt only on general principles; I have 
 only exhibited in another phase my maxim that Property is 
 not the Property of the Dead, but of the Living. In my 
 opinion the law should be altered to admit this maxim. Into 
 the details of any such alteration 1 have not attempted to 
 enter. Probably meetings of this kind are at all times better 
 suited to ventilate and discuss large general principles than 
 the actual machinery by which they are to operate ; and 
 certainly at this opening stage of the question, when I find 
 my general principles simply ignored by the bulk of men, and 
 denied by the great thinker whom I have endeavoured to con- 
 trovert, it would be mere waste of time to enter upon the 
 intricacies of a legal reform. But things are not well with us 
 in this matter of Foundations. For some reason or other, they 
 will not work. The machinery is attended with enormous 
 friction in the shape of labour and cost, and then turns out 
 bad work instead of good. It is like the princess in the fairy- 
 tale on whom a curse lay, so that when she tried to speak there 
 came forth only toads and asps. Go into any town where 
 Charities abound, and ask there what effect they have. You 
 will be told that they do mischief ; and the chances are that 
 your informant will add that it is a pity they are so abused. 
 But let us not lay that flattering unction to our souls. Abuse 
 is not what we have to complain of ; it is the system, or rather 
 the anarchy and want of system which we permit, and which 
 is rotten to the core. We have suffered ourselves to fall in 
 bondage to the speechless dead. The time was 
 
 " Tliat when tke brains were out, tlie man would die. 
 And so an end : bnt now they rise again, 
 And push us from our stools." 
 
 We must have recourse to simpler and healthier principles. 
 Reflection and experience have brought my mind to the con- 
 clusion which common-sense would seem to dictate, that living 
 men should be allowed to dispose of the fruits of the earth for 
 their own good, according to the best of their own judgment. 
 This is so simple that it seems like a truism. It is so simple 
 that we might expect it to be accepted as soon as stated, if we 
 did not know how hard it is to gain acceptance for any truth 
 that conflicts with established custom. Other simple truths 
 have only obtained recognition through struggles well-nigh
 
 28 
 
 desperate ; they have encountered, in fiercer times than these, 
 oppression and persecution ; they have been called v^icked, 
 impious, revolutionary, atheistical ; and if there be any other 
 term o£ obloquy it has been lavished on them. Freedom of 
 person, freedom of trade, freedom of speech, freedom of 
 thought, have all gone through stages of adversity more or less 
 cruel. But they have passed oq to victory, and are now 
 taken as the plainest axioms of common sense, and as the 
 cardinal points of human prosperity and happiness. I will 
 make bold to augur the same success for Freedom of Property ; 
 with what amount of struggle remains to be seen.
 
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