1819. in violation of private rights. This superintending power of the crown, therefore, over charities, must be confined to those which are valid in law. If, before sociation Baptist As V. the statute of Elizabeth, legacies like that under consi- Hart'sEx'rs. deration would have been established, on information filed in the name of the Attorney General, it would furnish a strong argument for the opinion, that some principle was recognised prior to that statute, which gave validity to such legacies. But although we find dicta of Judges, asserting, that it was usual before the statute of Elizabeth, to establish charities, by means of an information filed by the Attorney General; we find no dictum, that charities could be established on such information, where the conveyance was defective, or the donation was so vaguely expressed, that the donee, if not a charity, would be incapable of taking; and the thing given would vest in the heir or next of kin. All the cases which have been cited, where charities have been established, under the statute, that were deemed invalid independent of it, contradict this position. In construing that statute, in a preceding part of this opinion, it was shown, that its enactments are sufficient to establish charities not previously valid. It affords, then, a broad foundation for the superstructure which has been erected on it. And, although many of the cases go, perhaps, too far; yet, on a review of the authorities, we think they are to be considered as constructions of the statute not entirely to be justified, rather than as proving the existence of some other principle concealed in a dark and remote 1819. antiquity, and giving a rule in cases of charity which Baptist As- forms an exception to the general principles of our sociation law. V. Hart's Ex❜rs. But even if, But even if in England the power of the king as in England, a parens patria would, independent of the statute, ex charitable be quest of this tend to a case of this description, the inquiry would be enforced by still remain how far this principle would govern in nature could virtue of the king's prerog: the courts of the United States. Into this inquiry, ative as parens how far this patria, Quare, however, it is unnecessary to enter, because it can principle is ap- arise only where the Attorney-General is made a plicable in the courts of the United States? party. The Court has taken, perhaps, a more extensive view of this subject, than the particular case, and the question propounded on it, might be thought to require. Those who are to take this legacy beneficially, are not before the Court, unless they are represented by the surviving members of the Baptist Association, or by the present corporation. It was, perhaps, sufficient to show, that they are not represented by either. This being the case, it may be impossible that a party plaintiff can be made to sue the executor, otherwise than on the information of the Attorney General. No person exists who can assert any interest in himself. The cestui que trust can be brought into being only by the selection of those who are named in the will to take the legacy in trust, and those who are so named, are incapable of taking it. It is, perhaps, decisive of the question propounded to this Court to say, that the plaintiffs cannot take. But the rights of those who claim the beneficial interest, have been argued at great length, and with great ability; and there would have Baptist As been some difficulty in explaining satisfactorily, the 1819. reasons why the plaintiffs cannot take, without discussing also, the rights of those for whom they claim. sociation The Court has, therefore, indicated its opinion on Hart'sEx'rs. the whole case, as argued and understood at the bar. CERTIFICATE. This cause came on to be heard on the transcript of the record of the Court of the United States, for the Fifth Circuit, and the District of Virginia, and on the question therein stated, on which the Judges of that Court were divided in opinion, and which was adjourned to this Court, and was argued by counsel: On consideration whereof, this Court is of opinion, that the plaintiffs are incapable of taking the legacy for which this suit was instituted; which opinion is ordered to be certified to the said Circuit Court." a Vide APPENDIX, Note I, on Charitable Bequests. THE DIVINA PASTORA.-The Spanish Consul, The government of the United States having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the Courts of the Union are bound to consider as lawful, those acts which war authorizes, and which the new governments in South America may direct against their enemy. Unless the neutral rights of the United States, (as ascertained by the law of nations, the acts of congress, and treaties,) are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by us as other captures, jure belli, are regarded; the legality of which cannot be determined in the Courts of a neutral country. Where the pleadings in a prize, or other admiralty cause, are too informal and defective to pronounce a final decree upon the merits, the cause will be remanded to the Circuit Court, with directions to permit the pleadings to be amended, and for farther proceedings. APPEAL from the Circuit Court of Massachu setts. The petition or libel, in this cause, by the Consul of his Catholic Majesty at Boston, alleges and pro+ pounds, 1. That there lately arrived at the port of New Bedford, in this district, and is now lying in the said port of N. B., a Spanish vessel, called the Esperanza, otherwise called the Divina Pastora, having on board a cargo, consisting of cocoa, cotton, indigo, hides, and horns, of great value, to wit, of the value of 10,000 dollars; that the said vessel is navigated by seven persons, who are all American citizens, as he is informed, and believes; and that there are no 1819. The Divina other persons on board of said vessel, and none other were on board when the said vessel arrived at said port. That the aforesaid persons say, that the said Pastora. vessel was bound on a voyage from Laguira to Cadiz in Spain, and that she was captured by a privateer, or armed vessel, sailing under a flag, which they denominate, the flag of La Plata; and that they did intend to carry said vessel to some port in the West Indies, but, afterwards, came into the port of New Bedford. 2. That the said vessel and cargo purport to have been consigned to Antonio Seris, a merchant at Cadiz. 3. That the said Consul verily believes, that the said vessel has been captured and brought into the aforesaid port, contrary to the law of nations, and in violation of the rights of the said Antonio Seris, and that the said Antonio is justly and lawfully entitled to the possession of the said vessel and her cargo: concluding with a prayer, that the process of the Court may issue, directed to the Marshal of this district, or his deputy, requiring of them, respectively, to take the said vessel and cargo into custody, to the end, that due inquiry may be made into the facts pertaining to this case, and that the property may be adjudged, decreed, and restored, according to the just rights of whomsoever may be therein interested, and according to law and the comity which the United States have always manifested towards foreign nations. The plea and answer of "Don Daniel Utley, a citizen of the free and independent United Provinces of Rio de la Plata, &c., in behalf of himself and all concerned, in the capture of the Spanish polacre brig |