University of Virginia Library


Page 227


First Front Free Endpaper, Recto and Verso


Astell summarizes the opening portion of Edward Coke's exposition of an
Elizabethan statute pertaining to the incorporation of charitable institutions (Sec-
ond Part
[fifth ed. 1671]). Many of her phrases come directly from Coke's legal
commentary; see 720-725, especially 722-723.

The legal parameters here delineated clearly shaped Astell's plan for the Chel-
sea school. She is careful in her letter of 4 Sept. 1730 to Lady Betty Hastings to
distinguish between the £200 her aristocratic supporter had pledged "towards
building a charity school" and the "£200 more" she planned to raise "by benefac-
tions towards the use of the building" (reprinted in Perry 399; emphasis mine)—i.e., the
maximum initial endowment allowed without procuring a license of Mortmain,
essentially a tax paid to the monarch for the right to incorporate. Blackstone's dis-
cussion of this point in Commentaries (1765-69) is illuminating: "THE parliament,
we observed, by it's absolute and transcendent authority, may perform this, or any
other act whatsoever: and actually did perform it to a great extent, by statute 39
Eliz. c. 5. which incorporated all hospitals and houses of correction founded by
charitable persons, without farther trouble: and the same has been done in other
cases of charitable foundations. But otherwise it is not usual thus to intrench upon
the prerogative of the crown, and the king may prevent it when he pleases. And,
in the particular instance before-mentioned, it was done, as sir Edward Coke
observes, to avoid the charges of incorporation and licences of mortmain in small
benefactions; which in his days were grown so great, that it discouraged many men
to undertake these pious and charitable works" (1.18.462). Governmental concern
that too much privately held land was passing into charitable corporations—and
thereby rendered inalienable—led to the passing in 1736 of statute 9 George II
c.36, the so-called "Statute of Mortmain," which strictly limited the ability of own-
ers to make charitable dispositions of their properties. For an excellent account
of the imprecision with which concepts of charity and mortmain historically have
been conflated, see Chantel Stebbings, "Charity Land: A Mortmain Confusion,"
The Journal of Legal History 12.1 (1991): 7-19.


  • N. By 39 Eliz. c. 5. wch was made perpetual by 21. Jac. I. C. 1 Concerning ye Erection
    of Hospitals & Houses of Correction
    [two words scratched out] also Measons de dieu. &
    abiding places
    . [word scratched out] Any Person may erect such a house wthout licence
    of Mortmain, & endow it wth Manners, Lands, Tenemts hereditamts in fee-simple free-
    hold, to ye value of 200 £ & no more, nor less than 10£ p. annum. But if by improvemt,
    ye Land wch was not above 200 £ p an. at ye endowmnt, becomes worth more, they
    may enjoy its Goods and Chattels (real or personal) they may take of wt value soever.
    It cannot be erected by any other Instrument but by deed enrolled in ye Chancery,
    in Parchment. The Persons must be plac'd & nam'd wn ye Founder gives ym yr name
    of Incorporation, & yn ye Law by ye Act Incorporates ym.