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grafted into the jurisprudence of England, and been

Baptist As- transplanted into the United States.

sociation

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In White v. White, the testator had given a legacy Hart's Ex'rs, to the Lying-in Hospital which his executor should appoint, and afterwards struck out the name of the executor. The legacy was established, and it was referred to a Master to say to which Lying-in Hospital it should be paid. In giving this opinion, Lord Thurlow said, "the cases have proceeded upon notions adopted from the Roman and civil law, which are very favourable to charities, that legacies given to public uses not ascertained, shall be applied to some proper object."

These expressions apply, perhaps exclusively, to that class of cases in which legacies given to one charity have, since the statute of Elizabeth, been applied to another; or, in which legacies given so vaguely as that the object cannot be precisely defined, have been applied by the crown, or by the Court, acting in behalf of the crown, to some charitable object of the same kind. White v. White was itself a case of that description; and the words "legacies given to public uses not ascertained," "applied to some proper object," seem to justify this construction. If this be correct, the sentiment advanced by Lord Thurlow, would amount to nothing more than that the cases in which this extended construction was given to the statute of Elizabeth proceed upon notions adopted from the Roman and civil law.

But if Lord Thurlow used this language under the

a 1 Bro. Ch. Cas. 15.

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impression that the whole doctrine of the English Chancery, relative to charities, was derived from the civil law, it will not be denied that his opinions, even when not on the very point decided, are entitled to great Hart'sEx'rs respect. Something like the same idea escaped Lord Eldon in the case of Moggridge v. Thackwell. Yet upon other occasions, different opinions have been advanced, with an explicitness which supports the idea, that the Court of Chancery in England does not understand these dicta as they have been understood by the counsel for the plaintiff. In the case of Morrice v. The Bishop of Durham," where the devise was to the Bishop, in trust, to dispose of the residue "to such objects of benevolence and liberality as he, in his own discretion, should most approve," the bequest was determined to be void, and the legacy decreed to the next of kin. The Master of the Rolls said, "In this court, the signification of charity is derived principally from the statute of Elizabeth. Those purposes are considered charitable, which that statute enumerates, or which, by analogies, are deemed within its spirit and intendment." This case afterwards came before the Chancellor, who affirmed the decree, and said, "I say with the Master of the Rolls, a case has not yet been decided, in which the court has executed a charitable purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the property to purposes of charity in general."

The reference made by the Chancellor to the words of the Master of the Rolls, whose language he adopts,

a 7 Ves. 36.

b 9 Ves. 399.

c 10 Ves. 540.

1819. proves that he uses the term "law" as synonymous Baptist As- with "the statute of Elizabeth."

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Afterwards, in the same case, speaking of a devise Hart'sEx'rs. to charity generally, the Chancellor says, "it is the duty of the trustees, or of the crown, to apply the mo→ ney to charity, in the sense which the determinations have affixed to the word in this Court: viz. either such charitable purposes as are expressed in the statute, or to purposes analogous to those."

He adds, "charitable purposes, as used in this Court, have been ascribed to many acts described in that statute, and analogous to those, not because they can with propriety be called charitable, but as that denomination is, by the statute, given to all the purposes described."

It has been also said that a devise to a charity generally is good, because the statute of Elizabeth uses that term.

These quotations show that Lord Eldon, whatever may have been the inclination of his mind when he determined the case of Moggridge v. Thackwell, was, on more mature consideration, decidedly of opinion, that the doctrines of the Court of Chancery, peculiar to charities, originated not in the civil law, but in the statute of Elizabeth. This opinion is entitled to the more respect, because it was given after an idea, which might be supposed to conflict with it, had been insinuated by Lord Thurlow, and in some degree followed by himself; it was given in a case which required an investigation of the question; it was given, too, without any allusion to the dicta uttered by Lord Thurlow and himself; a circumstance which would

It

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scarcely have occurred, had he understood those dicta as advancing opinions he was then denying. is the more to be respected, because it is sustained sociation by all the decisions which took place, and all the opi- Hart'sEx'rs. nions expressed by the judges soon after the passing of the statute of Elizabeth. In 1 Ch. Cas. 134. a devise to the Parish of Great Creaton, the Parish not being a corporation, was held to be void independent of the statute, but good under it. So, in the same book, p. 267. on a devise to a corporation which was misnamed, the Lord Keeper decreed the charity under the statute, though before the statute no such devise could have been sustained. The same point is decreed in the same book, p. 195. and in many other of the early cases. These decisions are totally incompatible with the idea that the principles on which they turned were derived from the civil law.

There can be no doubt that the power of the crown to superintend and enforce charities existed in very early times; and there is much difficulty in marking the extent of this branch of the royal prerogative before the statute. That it is a branch of the prerogative, and not a part of the ordinary power of the Chancellor, is sufficiently certain. Blackstone, in v. 3. p. 47. closes a long enumeration of the extraordinary powers of the Chancellor, with saying, "He is the general guardian of all infants, idiots, lunatics; and has the general superintendance of all charitable uses in the kingdom; and all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the Court of Chancery." In the same volume, p. 487. he says, "the king, as parens

V.

1819. patriæ, has the general superintendance of all chariBaptist As- ties, which he exercises by the keeper of his consociation science, the Chancellor; and, therefore, whenever it is Hart'sEx'rs. necessary, the attorney general, at the relation of some informant, files, ex officio, an information in the Court of Chancery, to have the charity properly established."

The author of "A Treatise of Equity" says, "so, anciently in this realm, there were several things that belonged to the king as parens patriæ, and fell under the care and direction of this Court: as, charities, infants, idiots, lunatics, &c." Cooper, in his chapter on the jurisdiction of the Court, says, "the jurisdiction, however, in the three cases of infants, idiots or lunatics, and charities, does not belong to the Court of Chancery as a court of equity, but as administering the prerogative and duties of the crown."

It would be waste of time to multiply authorities to this point, because the principle is familiar to the profession. It is impossible to look into the subject, without perceiving and admitting it. Its extent may be less obvious.

We now find this prerogative employed in enforcing donations to charitable uses, which would not be valid if made to other uses; in applying them to different objects than those designated by the donor; and in supplying all defects in the instrument by which the donation is conveyed, or in that by which it is administered.

It is not to be admitted that legacies not valid in themselves, can be made so by force of prerogative,

a Cooper's Eq. Pl. 27.