than that of any of his predecessors (except Egerton) are sufficiently proved by the remarkable fact, that only three of his decrees were appealed from, and those were afterwards affirmed in the house of Lords. His respect for the laws, and for the justice of his country, was equal to his extensive learning; this rendered him attached to the love of those laws, and of that justice in every part; he was as tender of the just prerogative vested in the crown for the benefit of the whole, as watchful to prevent the least incroachment on the liberties of the subject. He was wonderfully happy in debating causes on the bench, which he did copiously and elaborately; nor was it necessary to repeat facts and reasonings a second time which had been stated to him. once; his attention to arguments at the bar was so close, and so undisturbed by moroseness, or any passion or affection of his nind, that he condescended to learn from the meanest, whilst he every day instructed and surprised the ablest he gave the utmost scope to objections which pressed the strongest against his own opinion, and often improved them; but his judgment was so correct and excellent, that even his unpremeditated opinions were generally acknowledged to be profound, and to turn upon the best points which the case afforded;, would bear the strictest examinations when reduced into written reports; and gave the highest satisfaction to the parties for their justice, and to the lawyers for the skill and discernment with which they were formed. Etiam quos contra statuit, quos et placidos dimisit. His habitual mastery of his passions gave him a firmness and tranquillity of mind, unabated by the fatigues and anxiety of business, from the daily circle of which he rose, to the enjoyment of the conversation of his family and friends with the spirit of a person entirely disengaged. After After he had resigned his high office he still enjoyed a pleasure in giving the full exertion of his abilities to the state, without expecting or receiving a pension of any kind whatsoever; and he seemed only to have resigned the laborious duties of the chancellor to be more at leisure to attend to such parts of the public service as were of more general use to the country. The strength of his understanding remained unimpaired to the last hour of his life, and he supported the disorder which proved fatal to him, of many months continuance, and of the most depressing nature, with uncommon patience, resignation, Biog. Brit. v. 6. and even cheerfulness. He died on March 6, 1764, in the 74th year of his age. pl. 2. 1 P. Wms. 249. SECTION I. Preliminary Observations. When we compare this statute with those which have preceded it, we cannot but observe that its spirit militates against the doctrine established by several of them, particularly the 43d of Eliz. and the manner in which we have already seen that act was liberally expounded: every subsequent act contradictory to former statutes, or which directs any new method of doing the same thing, although not in express words repealing, yet must be considered and taken as a repeal of them, so far as it contradicts them; thus the cases and decisions under the 43d of Elizabeth cannot all be taken as precedents for modern determinations; and the new act by almost subverting the old ones has opened a new source of legal knowledge, which for the sake of promoting and securing to the many new institutions of charity, which have sprung up up within the last few years, deserves, and is the present design, to be investigated. tions included in the act, pitals or not. 2 Ves, 328, It may not be improper to premise, that although New institumany of these late institutions could never be named in these acts, yet from their nature, such as dispensaries, whether hos contributions for different charitable purposes, as for the relief of the poor, for the discharge of prisoners for small debts, for the sunday-schools, for the black poor, and the like, they are all subject to the same restraints of mortmain, and the direction of visitors for misemployment of their property, and are all under the regard and relation of his majesty's Attorney-General, and derive their pa- 352. tronage from the crown, as effectually as if they had been named in the several acts already recited. And this opinion is in a great measure confirmed by the legislature itself in the annual acts of land-tax, where it was always provided, that all such lands, revenues, and rents, fettled to any charitable or pious use, as were assessed in 3 Burn Eccl. the 4th year of William and Mary, should be liable to be charged; and that no other lands, tenements, hereditaments, revenues, or rents whatsoever, then settled to any charitable or pious use, should be charged. The courts will expound the statute of mortmain so as to repress the mischief which gave rise to it, and advance the remedy provided for it. The mischief was, the devising lands in mortmain and creating perpetuities, which is attempted in cases where a perpetuity of trustees is raised by provisions for their successive appointments in wills. The remedy was to avoid all such dispositions in trust for any charitable uses whatsoever, using the largest and most general term as contradistinguished from religious uses. The construction of charitable uses in the statute of 43 Eliz. c. 4. goes much beyond the relief of the poor; the term extends, as appears by the preamble, to the repair of bridges, ports, highways, &c. and I aw, 315. Ambl. 651. 6 East, 332. 1 Ba. Abr. 590. and therefore implies a gift to the rich as well as to the poor; and hence a sale of lands to be applied to waterToone v. Cope- works, for the use of the inhabitants of a town, was holden to be within the statute of mortmain. stake. 1 Ves. 218. The first clause of this statute relates to gifts and conveyances of land to charities by way of donation. The legislature did not absolutely intend to prohibit all kinds of purchases of lands for that purpose, but to put them under such restrictions during the life-time of the benefactor as should restrain the too frequent alienations in mortmain. The act was not meant solely to restrain devises of lands to charities, but also to prohibit any devise of lands to trustees to sell them, and convert the produce of the sale to such purposes. This point was decided by Lord Henley, in the case of Attorney-General v. Tindal, in 1764, which, as it was founded on several cases that are necessarily classed under that part of this tract which treats of money or effects to be laid out in lands, will be mentioned in the proper place. 10 Rep. 30. 34 H. 8. c. 5. Hob, 136. SECTION II. Of Furchasing Lands. It is incidental to every corporation to have a capacity to purchase and hold lands for themselves and their suc cessors, and this is regularly true at the common law; but they are excepted out of the statute of wills, so that no devise of lands to a corporation was then good, except for charitable uses, by the 43d Eliz. c. 4. which exception is again greatly narrowed, says Mr. J. Blackstone, by the statute of 9 Geo. II. c. 36.; so that now a corporation, whether ecclesiastical or lay, cannot pur chase chase lands without licence from the crown, though that capacity seems to be vested in them by the common law. But corporations in general are favoured with this privilege, to a limited extent, in the charter or statute of their foundation; and as they are a creature of the state, it may be useful, in order to obviate any doubt of the validity of such a power, notwithstanding the statutes of mortmain, to take a succinct view of this part of the royal prerogative; by which it will appear to have been exercised sometimes under a presumption of an absolute right in the crown, at other times limited, and even prohibited by parliament; again, authoritatively exercised by the crown, and at last resumed by the legislature, and granted to the crown to be exercised according to its sound discretion. B. 2 c. 37. S. 29. s. 30. Kilway, 134, $ Hume, 243 Here it may well be considered, that, wherever an 2 Haw. P. C. act of parliament gives a particular interest or right of action to the party grieved, by the breach of it, 11 Co. 98. as the statutes of mortmain, which give an entry to the next immediate lord for an alienation to a corporate body, it seems to have been always agreed, that no charter by the king could be of any force to bar the night of the party grounded upon such statute; because it was a settled rule, that the king cannot prejudice the party's interest. And yet the claim, as well as the exercise of a dispensing power, are allowed to be very ancient in England; and though they seem at first to have been copied from papal usurpations, they may plainly be traced up as high as the reign of Henry III. The practice had so much prevailed, that the parliament more than once acknowledged this prerogative, particularly during the reign of Henry V. when they enacted laws against alicns,. n. 15. and also when they passed the statute of provisors. n. 22. But it is remarkable, that in the reign of Richard II. the parliament granted to the king a temporary power R. 2. n. 1. only Rot, par. 1 H. 5. Rot. par. 1 H.5. Rot. par. |