23 H. 6. c. 7. a Lutw. 193. 2 Haw. P. C. B. 2. c. 37. Co. Litt. 99. only of dispensing with the statute of provisors, which was a plain implication that he had not in himself such a prerogative; and in the reign of Henry VI. the crown was, by an express clause in the act for limiting the service of sheriffs to one year, prohibited from granting any dispensation. The judges, however, in the reign of Henry VII. and again in that of James I. ventured to flatter their respective masters with a determination that he had this absolute power. The distinction made by Sir Edward Coke was, that no statute can bind the king from any prerogative, which is sole and inseparable to his person, but he may dispense with it by a non obstante; as a sovereign power to command any of his subjects to serve him for the public weal, &c.; but in things which are not incident to his person, and belong to every subject, and may be severed, there an act of parliament may absolutely bind the king, as an act to disable every subject to take land of his grant or any of his subjects as bishops, as by 1 James I. c. 3. to grant to the king; this is good: for to grant or take lands is common to every subject, &c. The crown had been accustomed to dispense with the ancient statutes of mortmain without any clause of non obstante; for thereby he only relinquished that right of entry which those statutes gave him for the forfeiture, which every mesne lord might also do, as well so far as he had a right by those statutes. But the dangerous height to which the dispensing power was carried, and particularly by the last prince (James II.) in whose reign it was abolished, impelled the Commons to Hume, 240, examine the subject with minute attention in 1685: and as one instance of it was most pressing, they fixed on that for the subject of an address, which they conceived in very respectful terms, reminding the king of his pro mise from the throne, relative "to the removal of some officers from the army who had been suffered to remain, being unqualified by the act of Charles 11. against popish recusants; and that their continuance was dispensing with that law without any act of parliament, the consequences of which were of the greatest concern to the rights of his subjects, and to all the laws made for the security of their religion." 15 Rapin, 62. The king received this address very ungraciously, and expressed himself with great warmth and vehemence ; the Commons were so daunted with his reply, that they sat in silence for some time, until Coke, the burgess for Derby, said, "I hope we are all Englishmen, and not to be frightened with a few hard words;" for which he was committed to the Tower. Here the matter rested 8 Hume, 240. during the reign of James II. but as soon as William III. bad accepted the crown, this dispensing power was made one of the stipulations for the recovery of public right. It was expressly declared by the bill of rights, that no dispensation by non obstante of or to any statute, or Ss. 2. c. 2. S. 12. any part thereof, shall be allowed, but shall be held void 1689. and of no effect, except it be allowed of in such statute. 1. W. & M. 1696 This abolition of the power hitherto exercised as undoubted prerogative came in a few years afterwards to be - considered in a serious light by the clergy, as tending to be a great hindrance to learning and other good and charitable works, if persons well inclined might not be permitted to found colleges, or schools, or to augment the revenues of those already founded, by gran mg lands to them or to other corporations then existing, or to be afterwards incorporated for other good and public uses; an act for the encouragement of charitable gifts was therefore passed, revesting in the crown this prerogative, c. 37. by a full discretionary power to grant licenses to alicne in mortmain, and also to purchase, acquire, take and 7 and s W. 5. Journ. Dom. See Post. c. 2. hold in mortmain in perpetuity, or otherwise, any lands whatsoever, and of whomsoever the same should be holden: and declaring such laws so aliened, or acquired and licensed, not to be subject to any forfeiture by reason of such alienation or acquisition. This act originated in the House of Lords, where it passed with one amendment on the 13th of April, 1696: it was afterwards agreed to on the 25th of April, without any amendment, by the Commons; and Sir Henry Hobart (afterwards Chief Justice of the Common Pleas) the chairman of the committee, returned it to the House of Lords, where it received the royal assent on the 27th of the same April. All charters of this nature since granted are of valid authority under this statute; which laid at rest all questions of doubt relative to the dispensing power, and to the consequent title of lands purchased under any such licence or charter. If, therefore, any corporation purchase lands without any such provision in their charter. of establishment, or without having previously procured such licence from the crown, as the crown may be well advised by the Attorney-General to grant for that special purpose, the right of entry will accrue, and the lands so purchased will become forfeited. Such charities as, not being incorporated, have not any such licence, are reduced to the necessity of choosing from among themselves trustees, to purchase in their own names, and take the lands in trust for the charity, to hold to such uses, applications, control, and direction, as any general court of the governors duly called shall appoint; for if they were to take the purchase in the name of the institution itself, it not being incorporated, the lands would instantly vest in the crown as a forfeiture in mortmain. SECT. SECTION III. Of Devises of Real Estate for Charity. Law, 477. 2 7. No manors, lands, &c.] The first material case that 9 Geo. 2. c. 36. occurred after the making this statute was that of Ash- 2 Burn Eccl. buraham and Bradshaw; and as the chief question in Atk. 26. the cause appeared to be a point of law arising on the Barn, Ca. Cha. construction of a new act of parliament, which had never 1 Vezey, 33. Atty.-Gen. v, come in judgment before, and to be a matter of great Lloyd. importance, the Lord Chancellor thought it fit, in order to the settling the law thereupon, that the opinion of all the judges should be taken.-Robert Bradshaw made his will in 1734, and devised divers lands, and tenements, to trustees, and their heirs, in trust, or for the benefit of certain charitable uses therein- mentioned, amongst several other trusts. The above statute for restraining dispositions in mortmain took place in June, 1736. In July following the testator died, having been insane from the time of passing the act until his decease, and had not a sufficiently lucid interval to make any alteration in his will. The question was, whether such gift or devise, so far as the same related to the charitable uses, was good in law notwithstanding the statute? And all the judges, except Mr. Justice Denton, who was ill and absent, certified that the gift or devise, so far as related to the charitable uses, was good in law, notwithstanding the statute; and thereupon the court established the will, and decreed that the trusts of the charities should be carried into execution, on this reasonable ground, that the will was made and dated before the act, although the testator died after it had taken effect. 1 Vczey, 178. 1 Vezey, 225. 2 Wms. 262. Atty.-General v. Andrews, 4748, MSS. But in the case of Willet v. Sandford, the testator, Windowe, made his will in 1734, devising the bulk of his estate to trustees, to certain trusts, and particular lands to charitable uses. The act passed in 1786; and in 1744, by a codicil, he added new trustees, and confirmed his will. The devise to the charity was declared void; for the republication of the will by the codicil, after the act, rendered the devise clearly within the statute. In Attorney-General v. Andrews, a devise of copyhold lands not surrendered to the use of a will made before the statute was held good, as not within the last mortmain act, on the principles of the foregoing cases; nor within the statute of frauds; and good also by way of appointment-under 43d Eliz. I have been favoured a friend with this case in manuscript, on which account I insert it at length, in order to preserve the reasoning which it contains; but the facts on which it is grounded cannot, from the distant date of the statute, ever recur, so as to retain a devise of copyhold estate. William Weston, by will in 1735, devised his freehold and copyhold estates for the benefit of his daughter and the heirs of her body, &c. with remainder over to trustees for charitable uses, viz. for educating and apprenticing poor boys; he then specified his outstanding securities, and directed them to be called in and invested in the purchase of land, and appointed his daughter and others executors. The will was not attested. The daughter died first, and afterwards the testator died, without having made any surrender to the use of his will. An information was filed against his heirs-at-law and executors for a performance of the will, in relation to the charity; and though the will was proved in the spiritual court, it was proved also in this court, the probate below not being material (as was admitted by the relators' coun sel) |