1819.

Baptist As

v.

the words charity and charitable use are derived from that statute. In the case last cited, Sir W. Grant said, "In this Court, the signification of charity is derived sociation principally from the statute of Elizabeth. Those Hart'sEx'rs. purposes are considered charitable which that statute enumerates, or which by analogies are deemed within its spirit and intendment." Lord Eldon, in rehearing the same case, confirms the doctrine. "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." In a previous case, Lord Loughborough had said, "It does not appear that the Court before that period, (the 43d of Eliz.,) had cognizance of informations 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, but they made out the case as well as they could at law." The repeal of the English statute of charitable uses by the legislature of Virginia, must be considered as almost, if not entirely, repealing that whole head of equity. The effect of this repeal may be estimated by recurring to the history of the system of equitable jurisprudence. Every part of that system has been built up since the 43d year of Elizabeth, and there is not a single chancery case, touching charitable bequests, prior to the

a Morrice v. The Bishop of Durham, 9 Ves. 399.

b S. C. 10. Ves. 540.

c The Attorney General v. Bowyer, 3 Ves. jun. 726. VOL. IV.

2

V.

1819. statute of that year. The Court is then driven to ascertain either the common law method of effectBaptist Association ing charitable uses, or the jurisdiction of the English Hart'sEx'rs. Chancery, independent of the statute. Lord Loughborough says, that it had no jurisdiction whatever of the matter before the statute, and that they made out the case as well as they could at law; and he instances certain cases." The jurisdiction of the Court of Chancery in England, abstracted from, and independent of, the statute of the 43d Eliz., may be inferred from the course of the Court in cases where the donors of charities, failing to point out any object of charity, or designating improper, impolitic, or illegal objects, the statute gives the Court no authority to direct the charity to any definite purpose. In all such cases, the disposition of the funds belongs to the king, as parens patriæ, and is made by him under his sign manual. In Moggridge v. Thackwell, Lord Eldon, after reviewing all the cases, (acknowledging that they conflicted with each other, and that his own mind was perplexed with doubts,) came to this general conclusion, which he deemed the most reconcileable to authorities; that when the execution of the trust for a charity is to be by a trustee with general, or some objects pointed out, there the Court will take upon itself the execution of the trust but where there is a general indefinite purpose, not fixing itself on any object, the disposition is to be made by the king's sign manual. A due attention to

a Porter's Case, 1 Co. Rep. 23 Sutton's Hospital Case, 10 Co. Rep. 1.

b 7 Ves. 36.

1819.

Baptist As

V.

the cases there collected by Lord Eldon, will show that the first class of cases are those over which the statute of the 43d Eliz. gives the Court a jurisdiction, sociation and which it will consequently exercise; and that the Hart'sEx'rs. second class consists of those which belong to its jurisdiction, abstracted and independent of the statute, and in which the disposition belongs to the king." So if the donation be to a charitable use, but one which is deemed unlawful or impolitic, the disposition belongs to the king. And were it not for the statute, all charitable donations, whatever, would be subject to the disposition of the king, as parens patriæ. It is true, there are some dicta, which at first sight seem to support a different doctrine. Such is that of Lord Keeper Henly, in the case of Christ's College. But this dictum is directly contradicted by Lord Loughborough, in the Attorney General v. Bowyer. Lord Keeper Henly cites no authority for this dictum; but Lord Chief Justice Wilmot having, in the case of Downing College, said something of the same kind, cites the authority which, doubtless, Lord Keeper Henly had in his mind; which is what fell from Lord Macclesfield, in Eyre v. The Countess of Shaftsbury. "And in like manner, in case of charity, the king, pro bono publico, has an ori

a The Attorney General v. Siderfin, 1 Vern. 224. Fiser v. Peacock, there cited. The Attorney General v. Herrick, Ambl. 712.

The Attorney General v. Baxter, 1 Vern. 248. De Costa v. De Pas, Amb. 228. Cary v. Abbott, 7 Ves. 490.

c W. Bl. 91.

d 3 Ves. jun. 726,

e Wilm. Rep. 1.

1819.

! As:

ginal right to superintend the care thereof; so that, abstracted from the statute of Elizabeth relating to tion charitable uses, and antecedent to it, as well as Hart'sEx'rs. since, it has been every day's practice to file an information in Chancery in the name of the Attorney General for the establishment of charities."" Whence it appears, that the information which might be filed in the attorney general's name, for the establishment of charities, abstracted from, and independent of, the statute, related to such as depended on the disposition of the king as parens patriæ. This explanation is corroborated by what is said by Lord Somers, in the case of Lord Falkland v. Bertie. Lord Thurlow's dictum, in White v. White, that "the cases had proceeded on notions derived from the Roman and civil law," cannot be construed to extend to the entire adoption of the civil law on charities. By the civil law, if a man make a will containing a charitable bequest, and afterwards cancel the will, the bequest to charity is not thereby revoked. It is otherwise by the law of England. So, in case of a deficiency of assets, the civil law gave a preference to charitable legacies; but in the English Court of Chancery they abate in proportion." The conclusion, then, is, that in every case of charity, wherein the English Court of Chancery has not jurisdiction to direct the application of the

a 2 P. Wms. 118, 119.

b 2 Vern. 342.

c 1 Bro. Ch. Cas. 15.

d The Attorney General v. Hudson, 1 Coxe's P. Wms. 675. and note.

V.

charity, either by the words or the equity of the 1819. statute 43 Eliz., the disposition belongs to the king, Baptist Asas parens patriæ, and the Court of Chancery is only sociation resorted to in order to enforce his disposition. That Hart'sEx'rs. statute being repealed in Virginia, and no similar one enacted in that State, the disposition of all charitable donations is in the parens patriæ of Virginia. The Courts of the United States cannot direct this charity, or carry it into effect. It is the government of Virginia which is the parens patriæ of that State. At the revolution, all the rights of the crown devolved on the commonwealth; and still remain in the commonwealth, except such as are delegated to the United States by the national constitution. But none of the rights that appertain to the State government, as parens patriæ, are delegated to the United States. Can this, or any other Court of the United States, pretend to the care or guardianship of infants, lunatics, and ideots? If not, neither can they undertake the direction of a charity, which stands on the same footing as belonging to that government which is parens patriæ. Even, therefore, if it were admitted that the Court of Chancery of Virginia could carry this bequest to charitable uses into effect, the Courts of the United States cannot. Another objection to the jurisdiction of those courts is, that the Attorney General (that is, of Virginia) representing the parens patriæ, must be made a party." But

a Mitf. Plead. 7. 93. Cooper's Plead. 219. Anon. 3 Atk, 277. 2 Alk. 87. Monell v. Lawson, 5 Vin Abr. tit. Char. Uses, Ib. pl. 11. The Attorney General v. Hewett, 9 Ves,

432.