Introduction
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.
