City of London Livery Companies Commission. Report; Volume 1. Originally published by Eyre and Spottiswoode, London, 1884.
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Memorandum of the Merchant Taylors' Company.
The Royal Commissioners to inquire into the condition of Livery Companies having sent to the Merchant Taylors' Company, for their perusal, the evidence taken on the first eight days of their inquiry, the Company deem it to be their duty, no less than their right, to point out substantial mis-statements of fact, and erroneous conclusions drawn from them, which two of the witnesses have laid before the Commissioners.
The charges against the Company have not been stated with an explicitness such as might reasonably have been expected in so serious an inquiry, but they are to be found rather in a multitude of insinuations spread over some 20 pages, which, however, so far as they are capable of taking any form, seem to take the following:—
Each of these charges will be met and answered in turn. It may, however, be convenient here to dispose of the question whether the poor have any, and what, special claim on the funds of the Merchant Taylors' Company.
It is obvious that the purpose of some of the witnesses is to represent the livery companies as corporations created by the poor, and for the special benefit of the poor; as being the recipients of wealth accumulated from yearly contributions levied upon the poor freemen in former centuries. This representation, the Merchant Taylors' Company have here to submit, has no historical foundation. These guilds in their initiation were promoted, and during their continuance have been fostered, by the middle as distinct from either of the other two classes; individual members may have ascended from a lower to a higher class in society, but the guilds themselves have continued to be, as they now are, middle-class institutions.
The only way in which the poor can now in any sense be said to be connected with this Company is as recipients of their bounty, and as enjoying the funds which have been accumulated heretofore by the middle as distinct from the poorer classes.
Their relations with the Company may be either those of beneficiaries of a trust created for them by men of the middle class, in which capacity they may be honestly said to have received the whole, if not more than the whole, of what is due to them; or they may be considered as the recipients of a bounty which the Company, in recognition of the duties of the rich towards the poor, have voluntarily and spontaneously made to them, but in neither case can these voluntary benefactions be allowed to ripen into a legal claim upon the funds of the Company.
As has been before stated, the allegation that the Company must be considered as the heirs of the accumulated contributions of the poor in former times has really no historic foundation. That the Company used, under the name of quarterage," to levy contributions upon the whole of their members, including the freemen, who were generally of the poorer class, is perfectly true, as will be seen from the 13th Ordinance; but it is also equally certain, that so long as any portion of these contributions were so raised from the poor, the whole, and not only the proportionate part which had been derived from the freemen, was expended upon the poor; and so far from the Company being in possession of any accumulations derived from such a source, they are annually out of pocket by the transaction, as, while the wholesome custom of contribution has been discontinued, the Company's disbursements under this head continue.
Wealth, in the hands of a man or of a guild, may be coveted under the beneficent plea of using it for the alleviation of poorer men's burdens, but the security for property would be lost if poverty was a justifying plea for confiscation.
As the answer to this charge involves principally the correction of certain mis-statements of Mr. Beal, this may be perhaps the best place for the Company to explain how it is that they come to attach so much weight to Mr. Beal's utterances as to deem it necessary to devote no small portion of this paper to answering them.
In the first place, Mr. Beal speaks in a certain sense ex cathedrâ; he is, in the opinion of one at least of the Royal Commissioners, (fn. 1) the leading authority upon municipal matters, and, from his unique collection of literature upon the subject, he is not only justly thought to be in possession of the means of acquiring accurate information, but also, when he gives it, it is usually received as such : he lectures also to the working classes upon this subject; and as the audiences are crowded, (fn. 2) and are reported to be so unanimous as to "assent universally to the ideas there expressed," it is a satisfaction to feel that in stopping error here, it is stopped at the fountain-head.
In the second place, the Commissioners themselves appear to have accepted, to some extent, his assistance, if not guidance, by giving him peculiar facilities for prosecuting his inquiries into the affairs of the city companies with a view to framing his indictment against them; and the man entrusted with such a task should be proved, not only to be honest, which, in Mr. Beal's case, needs no demonstration, but accurate, which Mr. Beal certainly is not.
It is proposed to give, first, Mr. Beal's version of this affair, and then the true one, remembering always that even for an erroneous mis-statement in such a matter there can be little excuse, as the whole history of this case is public property, and not only public property, but this very case of Donkyn's Charity has been singled out (fn. 3) by Mr. Beal himself for especial study, as a leading one upon the whole question of charitable trusts.
So far as any connected account can be garnered from Mr. Beal's somewhat incoherent statements, it would seem that a more than usually vigilant Attorney General (fn. 4) haled the recalcitrant Company to the judgment-seat, and did not relax his grasp until the Company had disgorged the whole of their ill-gotten gains. Since that day Mr. Beal inclines to think that the race of Attorney Generals has declined, and that it will be a long time before we have another of equal pugnacity.
Robert Donkyn, by his will, dated 1570, gave to the Master and Wardens of the Merchant Taylors' Company, in fee, certain lands and tenements, with their appurtenances, to the intent as to the rents and profits thereof, to make certain specific payments thereout; and he directed the whole of the residue of the rents to be gathered into the Company's stock, to repair and, if need be, rebuild the said tenements at their discretion.
The year after Donkyn's death, after providing for all the specific payments, there remained a residue of 9l. 13s. in the hands of the Company, which was carried to the Company's corporate account, and, until 1862, this was regularly done; at the same time it should be said that all the expenses of repairings or rebuildings were discharged out of the same fund. (fn. 5)
Now, in the first place, it should be noticed, in passing, that at the time when the residue was carried to the corporate account, viz., in the year 1571–72, it is more than probable that the Company were absolutely right in so disposing of it, for the question of what should be done with residues in such cases seems to have been decided for the first time in 1610. (fn. 6)
In the second place, it should be noticed that, even supposing they were wrong, it was in the power of the Crown, under the Statute of Elizabeth (43 Eliz. c. 4.), to call them to account, and to have a full inspection of all their deeds for that purpose; and the fact that the Crown, at a time when it kept a vigilant eye upon the doings of the City Companies, never thought it worth while to interfere with them, is some, if not conclusive, evidence that their disposition of it was right.
Coming to later times, we shall find that so far from the Company's keeping back or concealing anything in this matter from Commissioners or others appointed to inquire into their disposition of this income, they have always been ready and willing to make such a disposition of it as the law or its officers should deem right, and (even incredible though it may seem to Mr. Beal) have themselves instituted those proceedings against an unwilling and recalcitrant Attorney General which Mr. Beal supposes the vigilant Attorney General to have instituted against them.
The Royal Commissioners may be reminded that from 1828, in which year the Commissioners of Inquiry, acting under 58 Geo. 3. c. 91, printed their report relating to the Merchant Taylors' Company's charities, Donkyn's will, and the dealings of the Company with the property devised under it, have been absolutely public property; and that if, after such a full disclosure, no action was taken against the Company, it can only be accounted for by the supineness of the Attorney General, according to Mr. Beal's theory, or, what is perhaps more probable, by the fact that the point as to the disposal of the residue was not so clear as to warrant any proceedings against them.
The year 1853 saw the appointment of the present Charity Commissioners; and it is, perhaps, not unreasonable to imagine that if any flagrant act of misappropriation was taking place, they were the persons, armed as they were with the very fullest powers of search and discovery, and having the reports of the Commissioners of Inquiry before them, to correct the error and place matters upon their right footing. It certainly never occurred to the Company, who saw what was going on elsewhere, to account for the Charity Commissioners' inaction by assuming that they, in company with the Attorney General, were suffering from an inordinate lethargy; they thought, perhaps unreasonably, but still perfectly honestly, that no reform was made in their administration of the charity because none was needed, and they still went on carrying the residue, whatever it was, to their corporate funds.
At last, in 1862, the present Charity Commissioners issued their order for Mr. Hare, their inspector, to examine into all the charities held by the City guilds; and, in performance of this duty, Mr. Hare, in or prior to January 1863, came to the Company's hall; he saw the will in question, and in the year 1864, in his report to his board, writes as follows :—"The construction always adopted by the Company, and which seems to have been acquiesced in by the Commissioners of Inquiry, is that the residue, after keeping the estate in repair, is given to the Company for their own use;" and he then adds, that "it may be a question for the consideration of the Board whether the actual construction of this gift should be determined by any legal proceedings, and whether the Company should be required to render the account of the estate as of an endowment wholly charitable."
But the court of the Merchant Taylors' Company, desirous of doing what was right, did not wait for this report, as in fact, they never knew of its existence until Mr. Hare referred to it in his evidence before the Royal Commissioners. The doubts contained in that report Mr. Hare mentioned verbally to the Company's officers as early at least as 1863; whereupon the court, on the 28th of January of the same year, ordered the residue to be held intact for the charity as from 25th December 1862, and empowered their clerk to consult Sir R. Palmer as to the proper construction to be put upon Donkyn's will.
The opinion of Sir R. Palmer was given in the ensuing March, and was to the following effect,—"That, subject to the provision for the 12 poor men and 12 poor women (the donees of the specific payment mentioned above), the Company are to be considered as trustees of the property, and, as such trustees, bound to render to the Charity Commissioners an account of the rents and profits arising therefrom."
The Merchant Taylors' Company lost no time in acting upon the opinion here expressed, and, as early as April of the following year, had submitted to the Charity Commissioners, for their sanction, a scheme disposing of the whole of the residue to charitable purposes. This scheme, however, the Charity Commissioners did not feel able to accept, on the ground that it proposed to devote the residue in question to persons of a higher class than the original recipients of the charity; and, in January 1865, they referred it back to the Company for reconsideration.
It would not be unreasonable to imagine that, upon the refusal of this kind, made at a time when the Company were under no legal obligation to defer to the opinion of the Charity Commissioners, the Company would consider that their duties were at an end, and that it remained for the Commissioners to take the initiative in any further proceedings; but so far from this being the case, the Company cheerfully accepted the decision of the Commissioners, and applied themselves to the task of seeing how best they might meet their wishes.
With that object in view, a conference was held with the Charity Commissioners, in which it was suggested and conditionally agreed that a convalescent home should be established by the Merchant Taylors' Company, to be ultimately supported out of two funds—those of Donkyn (which are the subject of the present memorandum) and of the prison fund (the history of which fund is with the Royal Commissioners)—so soon as the equitable rights affecting the same should be decided.
At the close of the year 1869, the Corporation of London notified their intention of obtaining parliamentary sanction for the use of the prison fund to establish a reformatory for boys, which led the Merchant Taylors, with other companies, into a parliamentary contest, in the session of 1870, to protect these funds from the Corporation representing the ratepayers of London.
However, not daunted by these difficulties, the Company, in January 1869, appointed a special committee to consider and select a site for a convalescent home. This committee consulted Dr. Gull, Mr. John Birkett, and other medical authorities as to its position as inland or seaside; and then, carefully considering nine different sites offered to them, ultimately selected Fitzleet House, Bognor, where the home is now established.
This estate was purchased, and taken possession of by the Company early in the year 1870. The house was immediately converted into a home, with 36 beds, now increased to 50, and opened as such on the 5th July 1870, for poor patients from any of the London hospitals.
As the Merchant Taylors' Company had then pledged themselves to carry on a convalescent home, how, it may be asked, was it that they subsequently appealed to the Court of Chancery for the proper construction of Donkyn's will ? The answer almost suggests itself when it is noticed that the Wax Chandlers' case, which was decided in August 1869, wholly altered the law, and gave, as it was thought, all residues devised in similar terms to the trust devisees. Obviously, such a question could not be left in doubt, and, under these circumstances, the Company placed the papers again before Sir R. Palmer and Mr. M. Cookson, who, in April 1870, wrote as follows:—
"We are of opinion that this case, though in some respects more favourable to the contention of the Attorney General, is not substantially distinguishable from the Wax Chandlers' case; and that accordingly the Merchant Taylors' Company must, while that case remains law, be treated as entitled to the property levised to them by Mr. Donkyn's will, or its present representatives, for their own benefit, subject only to such deductions as are specifically mentioned in the will.
"In coming to this conclusion, we have taken into account the order of the Charity Commissioners of the 25th February 1870 (to which our attention was called in consultation), and which treats the accumulations lately invested in the purchase of the house at Bognor as trust property. Having regard to the terms of that order and the facts stated in the case, that since Christmas 1862 accounts of the receipts and payments in respect of the entire property have been rendered to the Charity Commissioners, we think it expedient that the Company should obtain an authoritative declaration on the point raised by the case, through the medium of the Court of Chancery. This may be done by filing a bill against the Attorney General, for which, the claim of the Company being adverse to the charity, the leave of the Commissioners need not be first obtained.
A bill was accordingly filed, and the case was decided by the court of first instance on the 3rd November 1870, and of appeal in April 1871, declaring in both instances that the residue was a trust estate. The words in which these judgments were given furnish a justification to the Company, if such be needed, for their having taken the case before the courts for decision. In the lower court the judge (Lord Romilly) expressed his opinion that the litigation "raised a question which it was desirable to have settled"; and in the higher court the Lord Chancellor (Hatherley) described the case "as one of very great nicety," in which he came to this "conclusion with considerable hesitation."
To complete the statement of facts as to the prison fund, it should be mentioned that Parliament, in the session of 1870, threw out the Bill promoted by the Corporation of London; and then came the question of appropriating these funds to charitable purposes, which had to be dealt with by the Court of Chancery. This was done in 1873, by the reported case of Prison Charities, in 16 "Equity Cases," p. 145, which resulted ultimately in a transfer of these funds to the credit of the convalescent home.
The Company did not, as it will be seen, wait for this decision before establishing that home, although the scheme for that purpose was not finally approved and sealed by the Charity Commissioners until the 6th March 1872.
What, then, could any trustees, individual or corporate, do, more than the Merchant Taylors' Company have done to carry out a beneficent object; and where does Donkyn's case furnish a justification for Mr. Beal's contention that a new municipality should be originated to take the City companies by the throat and deal with them ?
The other witness to whom reference has been made is Mr. W. Gilbert, who has requested the Commissioners to take his evidence. He assures the Commissioners that he has given a good deal of attention to the City generally, including the companies;" and his mission is to show that "he has formed and expressed a strong opinion as to the action of the City companies in connexion with the poorer population of the City."
In general terms he accuses the City companies of driving the poor out of their districts." Whenever a house is destroyed and a new one is erected, in almost every case, especially with regard to those of City companies, a clause is inserted that no person shall be allowed to sleep upon the premises, thereby totally prohibiting the poor (though why only the poor ?) from returning."
He states his facts thus: that in Coleman Street the Merchant Taylors' Company own a property which, some 10 years ago, they leased at 2,300l. a year "under a condition that the whole building should be pulled down and about 200,000l. expended in building chambers, with a strict clause in the lease that no one should be allowed to sleep upon the premises."
When cautioned by one of the Royal Commissioners, lest he should be imputing blame to the Company upon imperfect information, he repeats his accusation "from his own personal experience" as a director in a large Assam Tea Company, which, by the bye, has on another occasion enabled him to furnish the Royal Commissioners with other information. It is suggested by the same Royal Commissioner that the leaseholder, and not the freeholder, has inserted this condition; but as his accusation against a City company, and his raison d'être for appearing before the Royal Commissioners, would fall to the ground if Mr. Gilbert accepted this (almost obvious) explanation, he answered, "No; the freeholders would not grant the lease except upon that condition."
Now, whether the leaseholder has or has not inserted such a condition is not known to the Merchant Taylors' Company; but they do know that the terms in which the Inhabited House Duty Act is framed did formerly, until the Act was amended, oblige persons letting premises for offices or warehouses to insert such a stipulation, not against the poor, but to escape this very heavy taxation.
The premises in question, prior to the re-letting referred to, were used as offices and warehouses, in which it is not probable that any persons resided, more than the occupiers required there for their employments. Be that as it may, the Merchant Taylors' Company did not seek or desire to alter in any way the purpose for which the premises should thereafter be used.
In the years 1875 to 1881 they granted ordinary building leases of these premises to A. A. Croll, Esq., at a ground rent, and with a covenant for an expenditure, not of 200,000l., as Mr. Gilbert asserts, but of 20,000l.
Whether Mr. Croll built offices or warehouses, with or without residences for the rich or poor, was a matter as to which the Merchant Taylors' Company made no stipulation whatever; and it may be added, that neither in this nor in any other case, when granting a building lease, have the Company ever inserted such a covenant as Mr. Gilbert affirms them to have included in the leases in question.
Before adverting to the statement of Mr. Gilbert on this head, the Merchant Taylors' Company may be excused if they preface these remarks by a short statement of their recent action as governors of that institution. This statement, it is hoped, will furnish reasonable justification, if such be needed, for their not having contributed as largely as other guilds have done to the Technical Institute.
Rightly, as they venture to think, the Merchant Taylors' Company recognised in 1866 an opportunity of largely increasing the usefulness of their old school as a high-class day school for the benefit of the residents in and about London. These matters are stated plainly in the Master's letter of the 23rd June 1866, to the governors of the Charter House, which is printed at length, p. 426 of the Company's memorials; but the paragraph to which attention invited is as follows :—
"In conclusion, I have only to add, that the Company desire—whatever may be the result of this communication— that I should express to the governors their thanks for the opportunity offered to them of becoming the purchasers of their estate.
"All that the Merchant Taylors' Company have it in desire to do is to supply the want which obviously must arise—unless the governors of the Charter House are prepared to make some provision for it, after their relinquishment of that sphere of usefulness which, for upwards of 250 years, within the City of London, and partially towards its citizens, the Governors of the Charter House have occupied—a want arising from no fault in the citizens of London, but necessarily resulting from the removal of an ancient educational establishment far beyond the walls. To aid in the supply of this want (so far as their corporate means will allow) is the only motive that has induced the Merchant Taylors' Company to give such anxious consideration to the proposals of the governors. How far the Company may be enabled to accomplish this object is dependent in some degree upon the result of this negotiation; but, whatever the result may be, I shall ever feel conscious that my colleagues and myself have manifested every desire to meet the proposals of the governors of the Charter House in a candid and unselfish spirit."
At that date, and when the "Royal Commissioners on the Public Schools" reported the annual cost of the school to the Merchant Taylors' Company was (say) 2,000l. per annum, they were left free and untrammelled by the parliamentary enactments which were extended to the other schools, the subject of that inquiry. The confidence thus reposed in them by Parliament, the Merchant Taylors' Company venture to think, has not been abused. Since that date they have sold their Irish estate, and devoted the proceeds thereof, with other moneys, to the purchase of the site and erection of the school in Charter House Square at a cost of 91,600l. They have increased the number of scholars from 250 to 500 boys: and their annual expenditure has been increased from 2,000l. to 7,724l. These figures, it is hoped, will satisfy the Royal Commissioners that the Merchant Taylors' Company are not indifferent to the cause of education for the middle-class of London residents.
It is not, as against Eton and other public schools, alleged that the Company's School was instituted for paupers; but it is insinuated that it was founded for the sons of working tailors, for Mr. Gilbert on being asked "if a proportion of the Merchant Taylors' fund should be applied for the benefit of the tailors generally?" he replies, "Yes; and that used to be the case. If you look at Machyn and Stowe's diaries, you will find they give a description of a dinner at Merchant Taylors' Hall, and also describes the Merchant Taylors' School, in which there was not a boy in the school that was not the son of a tailor."
The dinner will not probably be thought worthy of further notice by the Royal Commissioners, though that allegation might be easily answered; but the statement in relation to the school is one of graver moment.
As authorities for this strange assertion, Mr. Gilbert refers the Royal Commissioners to two authors, both of whom were members of the Merchant Taylors' Company; but before dealing with these, let it be noted, as dates are material, that the school was opened in the year 1561, under statutes framed by the Company. Though the number was limited to 250 boys, it was laid down in Rule 25 that " children of all nations and countries indifferently " should be taught, and as proof that children of different social grades should be accepted, Rules 5 and 6 should be referred to, as these provided that 100 should be taught freely, 50 paying 10s. a year, and 100 paying 1l. a year. There is not a scintilla of evidence in these statutes or elsewhere that the Company had any intention whatever of founding a class-school for tailors' sons.
But to refer to the authors quoted, Machyn's Diary closes, as will be seen on referring to it, in the year 1562–3, that is, within a few months after the school had been opened. Had he made the assertion imputed to him, its veracity might reasonably have been doubted, and the fact questioned whether 250 sons of tailors could have been found instanter, at the opening of the school doors, eligible to enter. But leaving this question for others to decide, it is certain that Machyn made no such assertion as is imputed to him. He does refer to "tailors' sons," so that he had his eye upon the craft, but his reference is not to the scholars," but to the "wardens" of the Company, who in the year 1555 he notes to have been all "taylors' " sons.
Stowe, in his "Survey," which work, it is presumed, Mr. Gilbert means by his reference to it as a "diary," is equally silent on the subject, and well it is for Stowe's reputation as a chronicler that he makes no such ridiculous assertion.
Wilson in his school history, which an author of Mr. Gilbert's reputation cannot be ignorant of, asserts that in 1567 the scholars came not only from the districts adjacent, but from the counties of " Oxford, Northampton, Dorset, "Somerset, and even York"; and this is nearer the truth. However, the parentage of many of the earliest scholars in Merchant Taylors' School is biography within the ken of any tyro in history, and had the witness shown his authorities (if he ever found them) to any such friend, it is to be hoped that he never would have committed himself to the statement he has made to the Royal Commissioners.
For conclusive proof it may be mentioned that the Merchant Taylors' Company possess a printed record of all entries in the school register from its opening until 1699, thus covering a period long after Stowe's death in 1605, and every page of this register furnishes a contradiction to Mr. Gilbert's assertion. Taking the first 10 years, up to 1571, as a test period, one tailor's son only, "William Hodgson, son of Robert, tailor," is entered, viz., on 12th July 1566; and not even the majority of the scholars are Merchant Taylors," though this term would not, having regard to the terms of Henry VII.'s charter, necessarily show the father to have been a "taylor." (fn. 7)
Passing from Mr. Gilbert's evidence, the Company confess that they have commented upon it with some degree of severity; but they hope that their criticism will not be taken for detraction: it was necessary to proclaim with no uncertain note the fallibility of one who claimed to be an expert upon the subject of municipal reform, and to bring to the consideration of the subject a judgment ripened by his researches into the usage prevailing in all the capitals of Europe besides our own. If Mr. Gilbert has allowed himself to be betrayed into such mis-statements with regard to subjects upon which it is possible for any one to form a correct opinion, is it unreasonable to ask that his statements elsewhere should be tested and weighed before being accepted as facts?
But a word in conclusion. The Company wish it to be distinctly understood that in thus entering the arena of controversy they come not as defendants, since their conduct as a company needs no defence, and as for their reputation as honest men they are content to leave it in the hands of the Commissioners; but they come rather to dispel the cloud of prejudice and aspersion which seems to envelop the consideration of their case, and which is mainly due to the intemperate and inaccurate statements of their detractors. Mindful of this, they have confined themselves to a bare and they hope a conclusive contradiction of material facts, and have never descended, so far as they know, to the language of extenuation. Their war is with error, not with individuals, and they hope that no word in the preceding pages is calculated to give offence to any one who is honestly and earnestly endeavouring to promote the public good, even though it should be at their expense.
It is, however, with some difficulty the Company candidly admit that they have brought themselves to include Mr. Beal in this category, since errors, which in one of less pretensions to knowledge would be venial, from his mouth can be considered little less than reckless; in such a case omission is more apt to be suppression, and mis-statement distortion.
Whatever misgivings, however, they may have had upon this score they have been able to dispel by considering that perhaps, after all, Mr. Beal is not to be taken at his own valuation, and that though he has assumed the role of omniscience with an airiness and jauntiness such as are seldom seen in one who is alive to its duties and responsibilities, his claim to the title has yet to be established.