could have been for such a measure; by shewing, on the one hand, that they were quite competent to deal with cases of undue influence by the ordinary rules of law; and, on the other hand, that such influence was exerted not in favour of charity, but of self-interest. Thus in 1757 occurred a case* before Lord Hardwieke, in which a gentleman gave an estate to his footman, who had acquired over him unbounded influence. The gift was set aside, and when the case came before the Lords Commissioners of the Great Seal by way of appeal, Lord Chief Justice Wilmot, in a very elaborate judgment, thus laid down the rule of law: "The court, where the gift is great, and no reason is given, or the reason given is falsified, and the giver is a weak person liable to be imposed upon, will look upon such gift with a very jealous eye, and strictly examine the conduct of the person in whose favour it is made; and if it sees that any arts or stratagems, or any undue means have been used, or that the donor is in such a situation with respect to the donee as may naturally give an undue influence over him; if there be the least intention of fraud, the court will interpose." In 1714 occurred a case† illustrating not only the law as to undue influence, but that perversion of religion which had been the cause of the decline of the charity, and the consequent legislation against it. The case was one in which— "The plaintiff, a lady, filed a bill against the defendant, a methodist preacher, and other trustees, that a deed of gift executed by her to them, might be delivered up to be cancelled. The bill stated that the defendant procured one Wolfe to send her a letter, in which he expressed himself thus: 'Though unknown to you in the flesh, from the report I have of you, I make bold to address you as a fellow member of that consecrated body wherein the fulness of the Godhead dwells. I have some thoughts of visiting you, to preach the kingdom of God.' She was prevailed upon by Woolfe to invite defendant to her house, where she entertained him for a considerable time, giving him money to defray the expenses of his journey. He afterwards paid her a second visit, when he prevailed upon her to accompany him to town, and become one of his congregation. In the course of two years he obtained from her about £150 by various pretences, and at last persuaded her to execute the deed in question, granting to him an absolute annuity of £50, secured upon her real estates. The Lord Chancellor (Henley, Earl of Northington) said: "This cause is the first of the kind that has ever come * Bridgeman v. Green, Wilmot's Cases, 14 Vesey. before any court of judicature in this kingdom. In regard to Protestant dissenters, God forbid that they should not be tolerated; but wide is the difference between them and fanatics, whose canting has no other tendency than to plunge their deluded votaries into the abysses of bigotry, despair, and enthusiasm; men, who, in the apostle's language, creep into people's houses, deluding weak women. Shall it be said that the court cannot release against the glaring impostures of these men? Here is a man, nobody knows who or what he is; his own counsel have taken much pains to tell me modestly what he is not, and depositions have been read to show that he is not a methodist. What is that to me? But I can easily tell them, from the proofs and his own letters, what he is: a subtle sectary, who preys upon his deluded hearers, and robs them under the mask of religion. Undoubtedly he hoped, in due time, to secure all her fortune by kindling another flame, of which the female breast is so susceptible; for the invariable style of his letters is, 'all to be completed by love and reason.' I consider this cause not merely as a private matter, but of public concern. Bigotry and enthusiasm have spread their baneful influence among us far and wide; and the unhappy objects of the contagion daily incrcase. Of this, not only Bedlam, but most of the private mad-houses are melancholy and striking proofs. The deed was obtained under circumstances of the grossest fraud and imposture, and must be delivered up, and he must pay the costs. His counsel tried to shelter him under the denomination of an Independent preacher: I have tried, in the decree I have made, to spoil his independence."" The glee and gusto with which the Lord Chancellor exercised his jurisdiction in this case (let it be remarked that he states it was the first case of the kind that had ever occurred in the courts) sufficiently shews that no act of parliament was requisite to provide against undue influence, especially of a spiritual nature. At the commencement of the present century (1807) occurred a celebrated case,* of the same description, before Lord Eldon, in which a bill was brought in equity to set aside a deed made by the plaintiff previously to her marriage, under the influence of the Rev. T. Baseley, a clergyman, and by which she conveyed an estate to his own use. Sir Samuel Romily's speech on that occasion is considered to have been very powerful. He stated the rule precisely in the words used by Lord Chief Justice Wilmot in 1757, and said: "The rule against undue influence applies to all the variety of relations in which dominion may be exercised by one person over another; and this * Hugenin v. Baseley, 14 Vesey. case discovers one of a very peculiar nature-influence obtained through the sacred character of a minister of religion. The rule of law guards against the danger of such influence in the cases of guardian and ward, or husband and wife; and if, in any case, it ought to have any weight, does not the principle apply with infinitely greater force to the present case? What is the authority of a guardian or a parent, compared with the power of religious impressions under the ascendancy of a spiritual adviser, with such an engine to work upon the passions, to excite superstitious fears or pious hopes, to inspire confidence or despair, to alarm the conscience with the horrors of eternal misery, or support the drooping spirits by unfolding the prospect of eternal happiness? What are all other means to these? Are inferior considerations to have such weight, and is no regard to be given to the most powerful motive that can actuate the human mind ?” In that case the Chancellor, Lord Eldon, set aside the gift, quite concurred in the doctrine thus laid down, and upheld the rule against undue influence of a spiritual character; so that it follows the act of George II could not have been required to protect testators against such influence. Meanwhile the act continued to operate against the most unexceptionable dispositions for charitable purposes. Of a host of cases, one or two may be cited as specimens. In 1786, a lady named Oglethorpe left a manor at Fairsted, Essex, to Granville Sharp, her wish being declared to be, that he should convey it to charitable uses. Mr. Sharp offered it to the city of London for an asylum for the encouragement of labour (especially for the benefit of women); but the Recorder advised the Corporation not to accept it, in consequence of the statute of George II. Mr. Sharp then offered it to the Bishop of London, for the education of poor negroes in the colonies ; but the bishop was deterred from accepting it by the same objection. Ultimately the heir-at-law recovered it.* In 1807 a Mr. Henshaw left £60,000 for the erection, of an asylum for the blind, and a school. The will was drawn by professional gentlemen, directing that the monies should not be applied in purchase of lands or erection of buildings. He died, by his own hand, in 1809. Less than twelve months before, he had, by a codicil, left a piece of land to the building of the school, which, in his will, he said it was his wish should be erected. The will was contested, and was also in suspense until * Doe dem. Burdett v. Wright, 2 Barnwall and Alderson, 710. the public came forward to erect the buildings, which the act of George II did not allow the testator to provide for in his will. This was not done until after twenty years, during all which time the charity was lost to the public. In 1813, a lady named Birch left an estate for the relief of widows and orphans. The heir-at-law was absolutely advertised for (he was so utterly unknown to the testatrix), and obtained the estate, which did him no good when he got it, after disputing with a host of competing claimants, and after an immense sum had been spent in litigation.* It is of course idle to contend that, in such cases as these the pretended policy of the act, the protection of heirs from disherison, or securing of near relations due provision, is really promoted; and it is perfectly impossible to dispute that, practically, the act operates, in a large proportion of instances, as a proscription of charity; and it is equally impossible to calculate, so far as Protestant charity alone is concerned, the amount of moral good which has been prevented, and the amount of moral mischief which has been produced, by the operation of this act against charitable dispositions; some idea of which, however, may be arrived at by reflecting on the unquestionable fact, that there cannot be a town in the country in which it has not prevented the foundation of some-in all large towns, several charitable and religious institutions, schools, almshouses, or houses in which childhood could have been instructed, poverty relieved, and criminals reclaimed. The cases cited show that persons disposed to endow charities, usually prefer, and often are obliged, to devote landed property, which, for many reasons, is the best for the purpose; and the framers of the act were well aware the Protestant religion is not unlikely to inspire people with that spirit of selfsacrifice which alone can lead men to give up in their lifetime property, the loss of which will entail poverty,—the spirit of the religious orders, which Protestantism disavowed, and the spirit that founded and endowed the religious houses,-which Protestantism destroyed. Practically, therefore, the act has operated, so far as Protestants were concerned, to prevent charitable endowments, except on the part of persons very rich and also (a union of qualities rather rare) very charitable. * Evidence of Mr. Hadfield, Report of Committee of 1844. Originally the act could, of course, have no application to Catholics, as they were, at the time it passed, prevented from possessing lands for any purpose by the anti-popery act of William III. That act was not repealed till 1778, and then there remained in force the penal laws, which rendered any charitable dispositions for popish purposes utterly illegal, and which were not repealed until 1829; and even then a new enactment against religious orders was inserted in the measure of "emancipation”, and the statute of superstitious uses was retained, and has recently received an interpretation more rigid than ever ;* and it was not until 1831 that land was allowed to be devoted to the Catholic religious purposes.† Of course, while the penal laws existed, it was utterly-and even since they have been repealed, partially-impossible, with safety, openly to dispose of property for such purposes. Now the act of George II required disposition by deed, and enrolment of the deed, which would entail publication of the purposes to which the property would be applicable, and would, in the case of Catholic endowments, be equivalent to an invitation of confiscation. Hence it was impossible for Catholics to make charitable dispositions in conformity with the act, and they were therefore driven to make them otherwise; and so to make them secretly. Hence arose secret trusts, as some improperly call them, or rather, as they are legally and properly termed, spiritual trusts, being such as are not trusts in law at all, any more than was the case with lands granted to religious houses of old. Accordingly they had to avoid the creation of any legal trusts at all; and a witness before the Committee of Wills thus stated how they acted: "Almost all the restrictions enforced by this law are evaded with the greatest ease. I am aware, in my own practice, of many cases in which they have been evaded, particularly in the case of devises for purposes connected with the Roman Catholic Church in this country; such things have been common, and there are several cases now pending in the courts, in which very large gifts and devises have been notoriously made for the purpose of benefiting charities. But they are evaded by the devise being made to some public officer of a charity (to the bishop, or some other person), who knows * See the case of West v. Shuttleworth, 2 Mylne and Keen. + By the act 1 and 2 William IV, commonly called O'Connell's act. See note ante. |