afterwards; or, had they arisen, would have been differently treated. 1819. Baptist Association V quests, where Charitable be no legal inter est is vested, and which are claimed by those for whom the beneficial Although the earliest decisions we have, trace the peculiar law of charities to the statute of Elizabeth, Hart'sEx'rs, and although nothing is to be found in our books to justify the opinion, that Courts of Chancery, in the exercise of their ordinary jurisdiction, sustained, an- too vague to be terior to that statute, bequests for charitable uses, which would have been void on principles applicable to other trusts, there are some modern dicta in cases respecting prerogative, and where the proceedings eing the preroare on the part of the king, acting as parens patriæ, which have been much relied on at the bar, ought not to be overlooked by the Court. interest was in tended, cannot be established by a court of equity, enfergative of the Eing, as parens and pendent of the In 2 Peere Will 119. the Chancellor says, "In like manner, in the case of charity, the king, pro bono publico, has an original right to superintend the patria, inde statute 43d of Elizabeth. 1819. words were uttered for the purpose of illustrating the original power of the crown over the persons and Baptist Association estates of infants, not with a view to any legal disHart'sEx'rs, tinction between a legacy to charitable and other V. objects. Lord Keeper Henly, in 1 Sir Wm. Blackstone's Reports, 91., says, "I take the uniform rule of this Court before, at, and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the Court will aid a defective conveyance to such uses. Thus, the devises to corporations were void under the statute of Hen. VIII. ; yet they were always considered as good in equity, if given to charitable uses." We think we cannot be mistaken when we say, that no case was decided between the statute of mortmain, passed in the reign of Hen. VIII., and the statute of Elizabeth, in which a devise to a corporation was held good. Such a decision would have overturned principles uniformly acknowledged in that Court. The cases of devises, in mortmain, which have been held good, were decided since the statute of Elizabeth, on the principle, that the latter statute repeals the former so far as relates to charities. The statute of Geo. II. has been uniformly construed to repeal, in part, the statute of Elizabeth, and charitable devises comprehended in that act have, ever since its passage, been declared void. On the same reason, similar devises must, subsequent to the statute of Henry VIII. and anterior to that of Elizabeth, have been also declared void. It is remarka V. ble that, in this very case, the Lord Keeper declares 1819. one of the charities to be void, because it is contrary Baptist Asto the statute of mortmain, passed in the reign of sociation Geo. II. All the respect we entertain for the Re- Hart'sEx'. porter of this case, cannot prevent the opinion, that the words of the Lord Keeper have been inaccurately reported. If not, they were inconsiderately uttered. The principles decided in this case are worthy of attention: "Two questions," says the report, " arose, 1st. Whether this was a conveyance to charitable uses under the statute of Elizabeth, and therefore, to be aided by this court. 2d. Whether it fell within the purview of the statute of mortmain, 9th of Geo. II. and was therefore a void disposition." It is not even suggested that the defect of the conveyance could be remedied otherwise than by the statute of Elizabeth. The Lord Keeper says, "the conveyance of the 22d of June, 1721, is admitted to be defective, the use being limited to certain officers of the corporation, and not to the corporate body; and therefore there is a want of persons to take in perpetual succession." (The very defect in the conveyance under the consideration of this court.) "The only doubt," continues the Lord Keeper, "is, whether the Court should supply this defect, for the benefit of the charity, under the statute of Elizabeth." It is impossible, we think, to understand this declaration, otherwise than as an express admission, that a conveyance to officers, who compose the corporate body, instead of the corporate body itself, or in other words, a conveyance to any persons not incorporated 1819. Baptist Association V Hart'sEx'rs. to take in succession, although for charitable purposes, would be void if not supported by the statute of Elizabeth. After declaring the conveyance to be good, the Lord Keeper proceeds: "The conveyance, therefore, being established under the statute of Elizabeth, we are next to consider how it is affected under the statute of the 9th of Geo. II." The whole opinion of the Judge, in this case, turns upon the statute of Elizabeth. He expressly declares the conveyance to be sustained by that statute, and in terms admits it to be defective without its aid. The dictum, therefore, that before that statute, courts were in the habit of aiding defective conveyances to charitable uses, either contradicts his whole opinion on the point before him, or is misreported. The probability is, that the Judge applied this dictum to cases which occurred, not to cases which were decided before the statute. This application of it would be supported by the authorities, and would accord with his whole opinion in the case. In the case of the Attorney General v. Bowyer," the Chancellor, speaking of a case which occurred before the passage of the statute of wills, says, "It does not appear that this Court, at that period, had cognizance upon information for the establishment of charities. Prior to the time of Lord Ellesmere, as far as tradition in times immediately following goes, there were no such informations as this on which I am now sitting, but they made out the case as well as they could by law." a 3 Ves. Jun. 725. 1819. Baptist As sociation V. Without attempting to reconcile these seemingly contradictory dicta, the court will proceed to inquire whether charities, where no legal interest is vested, and which are too vague to be claimed by those for Hart'sEx'rs. whom the beneficial interest was intended, could be established by a court of equity, either exercising its ordinary jurisdiction, or enforcing the prerogative of the King as parens patriæ, before the 43d of Eli zabeth. The general principle, that a vague legacy, the object of which is indefinite, cannot be established in a court of equity, is admitted. It follows, that he who contends that charities formed originally an exception to the rule, must prove the proposition. There being no reported cases on the point anterior to the statute; recourse is had to elementary writers, or to the opinions given by judges of modern times. No elementary writers sustain this exception as a part of the law of England. It may be considered as a part of the civil code, on which our proceedings in chancery are said to be founded; but that code is not otherwise a part of the law of England than as it has been adopted and incorporated by a long course of decisions. The whole doctrine of the civil law, respecting charities, has certainly not been adopted. For example: by the civil law, a legacy to a charity, if there be a deficiency of assets, does not abate; by the English law, it does abate. It is not, therefore, enough to show that, by the civil law, this legacy would be valid. It is necessary to go farther, and to show, that this principle of the civil law has been en |